Buksh, F.M. v Minister for Immigration, Local Government & Ethnic Affairs
[1991] FCA 436
•02 AUGUST 1991
Re: FAROUK MOHAMMED BUKSH
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and
REGIONAL DIRECTOR SOUTH WESTERN REGION, DEPARTMENT OF IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. G641 of 1990
FED No. 436
Judicial Review - Migration - Statutory Interpretation
102 ALR 647
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)
CATCHWORDS
Judicial Review - natural justice - procedural fairness - failure to take into account relevant considerations - failure to advise applicant of impossibility of success on forms supplied by department and of possibility of success on another basis - failure to consider eligibility for temporary entry permit of a different type to the permit applied for on wrong forms given by department
Migration - application for temporary entry permit as necessary prerequisite to permanent residence - wrong forms given to applicant by department - prescribed criteria for particular class of entry permit - compelling reasons for granting entry permit if applicant otherwise eligible - apparent eligibility - obligation on department to give correct information and forms or to take reasonable care to do so - no obligation on applicant to nominate correct or most appropriate category of entry permit - entitlement to have all reasonable possibilities of entitlement considered
Statutory Interpretation - whether a wrong application for entry permit precludes consideration of other possible entitlements
Words and Phrases - temporary entry permit - particular class of entry permit
Migration Act 1958 sections 4, 22(1), 33(2), 34, 36, 37, 47, 121 and regulations 35AA(1)(b), 89, 120(1)
Shaddock and Associates Pty Ltd v Parramatta City Council (No. 1) (1981) 150 CLR 225
Videto v The Minister for Immigration, Local Government and Ethnic Affairs (1985) 8 FCR 167
Formosa v Department of Social Security (1988) 81 ALR 687 Kurtovic v Minister for Immigration Local Government and Ethnic Affairs (1989) 86 ALR 99
Minister for Immigration Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Eremin v Department of Immigration, Local Government and Ethnic Affairs Wilcox J, unreported 1 August 1990
Elbourne v Minister for Immigration, Local Government and Ethnic Affairs Davies J unreported 28 February 1991
Re Qoro (Q90/00019) Immigration Review Tribunal 26 September 1990
Re Nunez (V90.00073) Immigration Review Tribunal 16 October 1990
Re Ramani (N90/00203) Immigration Review Tribunal 29 April 1991
HEARING
SYDNEY
#DATE 2:8:1991
Counsel and solicitor D.M. Yates instructed by
for the applicant Elsworthy Jones
Counsel and solicitor P. Roberts instructed by
for the respondents Australian Government Solicitor
ORDER
The decisions under review are set aside.
The case is remitted to the respondents to be dealt with according to the reasons for judgment herein.
The respondents are to pay the applicant's costs.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant seeks judicial review of what appear to be two decisions of the first respondent's delegate, the second respondent, made under or pursuant to the Migration Act 1958 (the Act) on or about 30 August 1990 rejecting certain applications, submitted through a firm of solicitors, for permission to remain in Australia. The rejection was notified to the applicant on 15 October 1990.
The applicant is a Fijian of Indian ethnic origin who was 39 years old at the time of his applications. He is married with two children and has a brother and sister who are Australian citizens and live here. On 19 November 1987 he and his family arrived in Australia on a business visitor's visa and were granted a one month temporary entry permit. Having remained in Australia in the meantime, he applied on 15 February 1990 for two types of permits for himself and his wife and children to remain in Australia. The effect of either of these permits would have been to allow the applicant and his family to seek permanent residence in Australia. This was always the applicant's clear intention and has always been assumed and accepted by the respondents. It is the refusal of these permits that gives rise to this application for judicial review.
For the applicant to qualify for permanent entry to Australia, he is required to comply with section 47 of the Act. Relevantly for present purposes, this requires that he be the holder of a valid temporary entry permit. He has had no such permit since 19 December 1987 when his original permission to enter the country for one month expired and he became what is known now as an illegal entrant.
It is necessary to have regard to some special circumstances of the case. At the time of the substantial amendments to the Act in 1989, the Australian Government caused a considerable amount of attention and publicity to be given to its desire that people illegally in Australia regularise their status. The concept of "amnesty" was in the air, albeit inaccurately. In consequence of a newspaper advertisement to this effect, the applicant visited the Bankstown office of the Department of Immigration, Local Government and Ethnic Affairs (the department), where he asked for something like the "amnesty forms". He was given three forms which he took away, completed and brought back to the department. Upon his return he was told that he had completed incorrect forms and was given another form to complete for what he was given to understand was an application on "humanitarian grounds". His application seems to have been dealt with on the basis of the four completed forms or sets of forms. They were all dated 15 February 1990. He paid the relevant application fee or fees.
The first set of forms sought what is known as an Extended Eligibility Temporary Entry Permit (EETEP) of which there are several varieties. It is common ground that the applicant and his family could never have been legally eligible for any of these varieties of permit because a number of factual or legal requirements of the legislation for their issuance did not exist. Nor, apparently, was he eligible for whatever was able to be granted on the additional "humanitarian" form given to him on his return to the department. This appears to have been an application for what is known as a Processing Entry Permit. The applicant concedes, and there is thus no dispute between the parties, that all of the 15 February 1990 applications were bound to fail and cannot now be resurrected so as to found a grant of permanent residence to the applicant's family. One of the reasons for certain failure was that Fiji had not at the time been gazetted as a country of origin attracting or entitling these categories of permit.
The application for judicial review makes a number of references to what were originally claimed to be entitlements pursuant to regulation 89 of the Migration Regulations but these were all withdrawn at the hearing because that regulation applies to visas for close family visitors and not temporary entry permits. A promised amended application to delete the references to regulation 89 did not materialise but it is nonetheless possible to crystallise what is left for determination, despite the fairly wordy form of the application.
In substance, the applicant argued that he was denied natural justice in the sense of procedural fairness because he was not advised that his application might have succeeded had he applied for a temporary entry permit under regulation 35AA(1)(b). This provides that the Minister may grant temporary entry to an illegal entrant such as the applicant if he satisfies what is called in the regulation:
the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant).
If the applicant so qualifies, the Minister must then be satisfied that there are compelling reasons for granting the entry permit. As the regulation's terms provide that the applicant is not required to satisfy its parenthesised criteria, it must first be determined whether there is an applicable class of entry permit for this case, whether there are any additional prescribed criteria for that class, and whether the applicant satisfies those criteria. By section 22(1), the applicant would cease to be an illegal entrant if an entry permit was granted to him. The requirement of section 46 that the applicant be physically present in Australia is not in issue.
Section 33(2) of the Act is the regulation-making power for classes of entry permits. Relevantly for this case, regulation 21 establishes the classes of entry permits set out in Part 1 of Schedule 3. Of some 55 numbered classes, the applicant suggests that he is eligible for at least three, namely family relationship (no. 23), close family visitor (no. 46) and visitor (other) (no. 50). Some other categories may also have been appropriate to him.
None of the classes of entry permits mentioned in Part 1 of Schedule 3 have criteria prescribed for them. Nor are they defined, although in the inapplicable regulation 89, entitlement to a "close family visitor" visa would have included the applicant as the brother of an Australian citizen resident in Australia. However, even without definitions in Part 1 of Schedule 3, at least classes numbered 23 and 46 could apply to the applicant. The argument would be that as the applicant is visiting "close family" in Australia or has a "family relationship" with people in Australia, there being no prescribed criteria to satisfy for these classes, the applicant is eligible for a temporary entry permit under regulation 35AA(1) provided that the Minister is satisfied that there are "compelling reasons for granting the entry permit".
The abortive forms originally submitted to the department contain strong grounds for such satisfaction if ultimately relied on by the applicant in this connection. In summary, these are that:
1. since the applicant's arrival in Australia, Fijians of Indian
ethnic origin have suffered repression and other violations of their human rights;
as the applicant was a close associate of the late Prime Minister
Dr Timoci Bavadra, his return to Fiji may well subject him to harassment and ill treatment by the military and other authorities such as to make him fear for the safety of himself and his wife and children;
as he has close family in Australia, as he has adapted to life in
Australia, and as employment opportunities are greater for him in Australia, his return to Fiji would create special hardships.
Because of the limited way in which his earlier applications were approached by the second respondent, these matters have never been investigated or considered by the Minister. I am therefore not called upon to rule on them at this stage. The question at present is whether the failure of the authorities to offer the applicant the opportunity of having his application considered, or of submitting a fresh application, under regulation 35AA(1)(b) deprived him of procedural fairness. The applicant's point is that permanent entry cannot be considered unless he has a temporary entry permit and there exists a means of his acquiring such a permit which has not yet been considered. In Videto v The Minister for Immigration, Local Government and Ethnic Affairs (1985) 8 FCR 167, Justice Toohey, when a member of this Court, thought that this type of situation was more akin to a failure to take into account relevant considerations than natural justice.
A similar question to the one in the present case was considered by Justice Davies in Elbourne v Minister for Immigration, Local Government and Ethnic Affairs, an unreported decision given on 28 February 1991, where his Honour decided that the particular illegal entrant did not qualify for a temporary entry permit because she sought to remain in Australia permanently. It seems to have been implied that if this were not the case, relief would be available by way of judicial review. As I read it, that case is clearly distinguishable from the present case, inter alia because the applicant here was not refused a temporary entry permit on the ground that he was seeking permanent residence. With abundant respect I would find it difficult to follow the decision otherwise for the reasons which follow.
The respondents argued that the Act imposes no obligation on the department to interview applicants for entry permits or to extract information designed to enable departmental officers to convey to any applicant the existence of another category for which the person might qualify in case the submitted application failed. That is strictly true but to my mind, to limit the issue in that way misconceives the nature of the statute and the concept of public service which departmental officers are supposed to embody. Would a corresponding attitude be appropriate, for example, for the Departments of Community Services and Health, Social Security, Veterans' Affairs or Education, Employment and Training? Or for that matter any other department of government anywhere?
Section 47 and regulation 35AA are enabling provisions by which Parliament offered certain people illegally in Australia the opportunity of regularising their status temporarily with a view inter alia to making them eligible to request a grant of permanent entry. The obvious intention of these provisions was to encourage people to report their illegal status by offering an incentive to do so. Such an entitlement cannot therefore be treated as if it were a technical or theoretical facility hidden away from public view in the recesses of the legislation known only to government officials who through pressure of work or oversight decline to consider it or draw it to attention. It is also not a tenable thesis for a compassionate democratic society, especially, although not necessarily only, when the grounds of the applicant's desire to remain in Australia include a genuine and sustainable fear for his and his family's personal safety if required to return to his country of origin.
When the applicant asked vaguely for the "amnesty forms", it must have been obvious to the officer concerned that the applicant had no idea what forms were appropriate to his circumstances. If a few simple questions had been asked, the officer would have easily ascertained that the applicant could not succeed in applications based on the forms given. The applicant may well then have taken a different course; he would almost certainly not have paid the application fee(s).
By section 37 of the Act, once a person has applied for and been refused a particular type of permit to remain in Australia, no further application can generally be made and no review is available. It is interesting to contemplate an extraordinary consequence had the applicant requested, as he might, what would have been a pointless review by the Immigration Review Tribunal of the refusal of his original hopeless applications. If, having embarked on the review, the Tribunal had felt that he "might have grounds for making...an application for an entry permit of a different class...", the Tribunal would by section 121 have been bound to notify the applicant of the available alternative(s) and adjourn the review for 10 days to allow him to make application(s) for the other class(es) of permit. If the additional application(s) had failed, the Tribunal could then have been asked to review all the refusals including those part heard.
It is true that if this comprehensive review failed, this person would by section 36 be generally refused the right to make any further application for permission to remain in Australia. But what section 121 injects into the legislation is an obligation on the department, at the instance of the Tribunal to do that which, if the respondents' argument here is accepted, the department is not required to do at the instance of the applicant. This would be a truly anomalous and remarkable result of the legislation, both in principle and because of the prodigious cost, delay and futility.
The ultimate effect of the respondents' argument can be summarised thus. Assume, as was undoubtedly true, that there is an illegal entrant who was in Australia before 19 December 1989. He cannot read, write, speak or understand English. He is given advice by the department in writing that the only chance of obtaining permission to remain in Australia is by completing and submitting a large number of forms all handed to or specifically identified for him by the department. It turns out that the person could never have succeeded on any of those forms but could have succeeded, and could still succeed, on one other which was not made available, perhaps because it was out of stock or the officer at the counter had only commenced work that day. According to the respondents, the claimant is not permitted to have the possible entitlement even considered. The legislation and Australian society provide no warrant for such a bizarre result.
In Formosa v Department of Social Security (1988) 81 ALR 687, Davies and Gummow JJ said at 693:
In the nature of things, the form lodged by an applicant will be the document the applicant has obtained from an officer of the Department, rather than some holograph or informal instrument prepared by the applicant. The applicant, in the ordinary course, will have no knowledge whether or not the particular form that has been obtained from an officer of the Department is, in truth, a form approved by the Secretary within the meaning of s 159(1) of the Social Security Act. Through some default in administrative procedures it may be that the form in use in a particular office of the Department is not the form currently approved by the Secretary. It would be, in such a case, a curious result if the claimant were to suffer, as a result of inadvertence within the Department, for the claimant's failure to comply with requirements spelled out in s 159(1).
It would be no less odd if an incorrect form, submitted at the suggestion, request or invitation of the department, though approved in relation to a particular application, excluded an applicant from making, or having considered, an application for a different class of permit which all sides agreed was his original and true intention.
In this case, the department failed to advise the applicant correctly as to his rights; it guided him wrongly and misrepresented the correct position to him by providing him with wrong forms; it required him to complete and submit them; and the Act and regulations required that he pay one or more fees upon lodgment. According to the respondents' submission, the applicant was thereby prevented from making or having considered an alternative application which might succeed. Hence, in completing and submitting the abortive forms, and in paying the relevant moneys, this applicant has, even on the respondents' case, acted to his own severe irreversible detriment on the basis of the false advice and negligent actions of the department.
The question here is whether this conduct by the department manifests one or more relevant errors of law so as to warrant judicial review. It seems that estoppel may not be available against the department: see Minister for Immigration Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, although the decision in that case is difficult to apply in the circumstances here. In the first instance decision in Kurtovic: see (1989) 86 ALR 99, a number of cases were discussed or referred to which, along with the Full Court decision and the cases referred to there, appear to leave open the possibility that estoppel would be available in at least some cases involving the exercise by public officials of statutory authority. There is no point in repeating them here. It will suffice to say that the major premises given by the Full Court in Kurtovic for the unavailability of estoppel in that case do not exist in the present case, although some practical difficulties still exist, apart from the issue of principle. See again Formosa per Davies and Gummow JJ at 695-6. If I am free to do so, and without specifying the category of estoppel from those discussed with great learning by Gummow J in Kurtovic, I would find that the respondents are estopped from refusing this applicant a consideration of any entitlement under regulation 35AA and section 47.
However, there are two other ways to approach this case. One is at common law. In Shaddock and Associates Pty Ltd v Parramatta City Council (No. 1) (1981) 150 CLR 225, the High Court held that a local council was under a duty to purchasers of property in the council's geographical area of responsibility to take reasonable care that the information given in a certificate issued by the council was correct. The failure to mention certain road widening proposals on the certificate was held to have amounted to a statement that none existed. As this was erroneous, the council had breached its duty.
Gibbs J, as he then was, stated at 232 (Barwick C.J. agreeing):
the duty in my opinion can exist in relation to the giving of information as well as advice.
In my view, giving information extends to the handing out of forms. At 235 Gibbs J said:
From the standpoint of principle there is no difference between a person who carries on the business of supplying information and a public body which in the exercise of its public functions follows the practice of supplying information which is available to it more readily than to other persons, whether or not it has a statutory duty to do so. In either case, the person giving the information to another whom he knows will rely upon it in circumstances in which it is reasonable for him to do so, is under a duty to exercise reasonable care that the information given is correct.
He continued:
A public body, by following the practice of supplying information upon which the recipients are likely to rely for serious purposes, lets it be known that it is willing to exercise reasonable skill and diligence in ensuring that the information supplied is accurate. In the circumstances, diligence might be more important than skill, although competence in searching for and transmitting the information must play a part. However, even if diligence only and not skill were required, a public body might be specially competent to supply material which it had in its possession for the purposes of its public functions.
It seems to me that these circumstances apply to this case. The department exercises public functions. Although it has no statutory obligation to supply general information and advice, it does so in fact. In addition, there is an express or implied statutory obligation to supply at least those approved forms which it considers are appropriate for people claiming entitlement to come to or remain in Australia. Indeed, at the relevant time for this case, the department was actually importuning people to come forward to receive information about their entitlements, and holding itself out as in substance the sole repository of the information.
In giving him the abortive forms as being appropriate for his circumstances and in requesting, advising or inviting him to complete and lodge them, and pay the appropriate fees, as the only way to achieve any entitlement to be in Australia, the department knew or expected that the applicant would, and required him to, rely on its representations. In the circumstances it was certainly reasonable for him to have relied on what he was given and told. According to Shaddock, the department thereby attracted a duty to exercise reasonable care that the forms were correct for the purpose intended. Its failure to do so entitles the applicant to appropriate relief.
The second alternative to estoppel is by means of the statute. "Temporary entry permit" is defined in section 4 of the Act as an entry permit that is subject to a limitation as to the time the holder is authorised to remain in Australia.
Nothing in the Act or regulations suggests that such a permit cannot be granted for sufficient time to enable an otherwise illegal entrant to apply for permanent residence. Indeed, the very fact that section 47 emphasises as a necessary prerequisite to an application for permanent entry that a non-citizen be the holder of a valid temporary entry permit, clearly implies that one of the purposes of such a permit may legitimately be to provide the non-citizen with the opportunity of applying for permanent entry.
Looked at from the opposite end of the argument, the grant of a temporary entry permit on the basis that the grantee is visiting with close family while applying for permanent entry is neither inconsistent with the spirit nor contrary to the terms of the Act. This is in fact likely to have been one of the principal sets of circumstances envisaged by the scheme established, short of a general amnesty, to entice people illegally in Australia, and provide them with the maximum incentive, to regularise their status in the country.
Temporary entry permits are mandatory results of section 34 of the Act once the legal prerequisites exist. That section provides:
(1) This section applies where, and only where:
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit.
Thus the Minister is bound to grant an entry permit to a person who makes an appropriate application and pays the prescribed fee if the applicant is entitled to the particular class of entry permit. If the application accords with the requirements of the regulations and the fee is paid, but the applicant is not entitled to the "entry permit of the class concerned", the application must be refused. An application for anything other than "an entry permit of a particular class in accordance with the regulations" cannot be considered or result in an entry permit of any kind.
In other words, as long as an application is made for a particular class of entry permit, the Minister is required to consider "an application". He must grant the entry permit actually applied for if the applicant qualifies for it and must refuse to do so if the qualifications are absent. But nothing in the section excludes the Minister from granting an entry permit of another class if the applicant has the requisite qualifications.
Subsection (2) of section 34 required that this applicant's applications be considered. No part of section 34 suggests that an entitlement to an entry permit of a category or class other than that applied for cannot and should not be considered. Indeed I think that the section was intended to operate so as to expose for consideration whatever class of entry permit is within the eligibility of an applicant. Where an applicant is entitled to an entry permit under a class provided for in the regulations, the fact that he has made an application under a different class still requires his application to be considered (provided the fee is paid). The appropriate entry permit must then be granted if he qualifies under the prescribed eligibility rules for the alternative class. In this case, at least one available or possible entitlement of this type has not been considered.
Regulation 120 prescribes criteria in relation to certain types of temporary entry permits granted in Australia. The permits concerned include prescribed permits "the application for which would have resulted in the applicant being granted a visitor entry permit if the application had been made on or after 19 December 1989". On its face, the regulation alone does not provide for the actual issue or grant of permits at all, although the heading to the regulation is "Grant of temporary entry permit to holders of" certain visas or entry permits. It certainly seems to apply only to persons actually holding certain types of permission to be in Australia at the time of an application for an extension of the existing permit or for some other type of permit.
Of course at the time of his applications on 15 February 1990, the applicant held no valid entry permit. Whether, therefore, this could be a route, together with regulation 35AA or separately from it - something similar to the interaction of regulation 35AA and section 47, towards regularising this applicant's status is not clear. If he is eligible for anything under this regulation, the provisions of subparagraph (e)(i) appear to entitle him to consideration. Perhaps such an application would be bound to fail but again this possible entitlement seems not to have been examined because it was not applied for on the forms given to the applicant by the department.
It is not open to dispute that the Act and the regulations are a minefield of complexity and are incomprehensible for normal people. Counsel for the respondents called the scheme "convoluted". I do not know if he was speaking from instructions but he was being generous to the legislation. In Eremin v Department of Immigration, Local Government and Ethnic Affairs (unreported 1 August 1990), Wilcox J referred to the fact that between January and August 1990, which is when this applicant's forms were lodged, the regulations had been amended on at least 9 occasions and that not even the Australian Government Publishing Service had copies of all the amendments. His Honour pointed out that at one stage there were 96 different classes of entry permit. Wilcox J went on:
As will already be apparent, understanding the regulations is no easy matter. Apart from the initial problem of obtaining an up-to-date text of the regulations, the reader is confronted with a lengthy and complex document, abounding with cross-references from one provision to another; by section and regulation numbers, symbols and code numbers. The task of ascertaining the position in relation to a particular applicant or a particular type of visa or entry permit is akin to feeling one's way through a labyrinth. Perhaps there are officers of the Department of Immigration, Local Government and Ethnic Affairs who can confidently move around this new regulatory environment, but it must be impossible for ordinary people affected by the regulations to do so; particularly as many of these people have little or no command of English or experience in legal matters. The desire to substitute guidelines for unfettered discretion, in the area of visas and entry permits, is understandable. But, if compliance with the requirements of regulations is to be made critical to the success of an application, fairness requires that the regulations be both readily available and easily intelligible. In the latter connection, I wonder whether it is really necessary to have so many classes of visas and entry permits, many of which only finely differ from other classes.
I agree. With legislation such as this, I am unable to accept that the obligation falls onto a person such as the applicant to nominate the correct or most appropriate class or type of entry permit for his circumstances. The lives of families in some danger of persecution or harassment if required to leave Australia and return to their country of origin cannot be so easily programmed. They are not regulated bureaucrats. They are looking for competent and comprehensive assistance when they enter the portals of a government office.
Government departments cannot be required to become or act as adversarial tribunals using obscure legislation, overwork or inexperience as an excuse for providing citizens with careless or incomplete service. If they are, a serious conflict will arise between the desire, indeed duty, of their staff members to act as decent honourable caring citizens providing a public service, and their duty to their employers, or to an administrator's untested narrow or undoubtful interpretation of complex legislation. Faced with this conflict, many who prefer the former course may leave their posts so that those who stay and those who replace them will all have preferred the latter option. Even the cost of the staff turnover will be detrimental to the public good.
Moreover, members of the public will simply not come forward to confess their illegalities. In the case of people illegally in Australia, there will be no incentive to come out of hiding. The cost of hunting them down will be enormous and many will escape detection. The public interest will be irrevocably harmed by all these virtually certain consequences.
Yet if proper and full assistance is not given, or if wrong advice is proffered and relied on, the persons concerned will sometimes act so as to exclude important rights. The concept that such persons should be denied available relief is repugnant to a fair society and the relationship between the members of that society and their executive government.
The respondents also submitted that if their officers had to interview and assist every applicant for temporary or permanent residence to find the application form most appropriate to their circumstances, what their counsel described as the resulting "administrative nightmare" would be overwhelming.
The person who gave this applicant the wrong forms was not called to give evidence. In fact the department called no one to explain the system or identify in evidence any difficulties in the Bankstown office in February 1990. There was no evidence of any general problems of an administrative nature that may be occasioned by the introduction of a system more appropriate to human beings under stress than the one experienced by this applicant. All I had was counsel's colourful rhetoric and somewhat exaggerated speculation. If his observations were correct, and there is nothing to suggest that they are a fair response to the problems posed by this case, it is a complaint that should be taken to Parliament, not the courts. I should be surprised if the humanitarianism of Australian legislators was so meagre as to result in a sympathetic hearing to such a viewpoint.
If illegal entrants are on certain grounds granted an entitlement, even encouraged, by statute to apply for consideration of a change of status in the country, the great departments of state like this one have an obligation to provide procedures which enable the law to be observed and applied. This is not done if such persons are sent by officials on wild goose chases and then held to account for the failures which inevitably result.
Decisions of the Immigration Review Tribunal indicate that this is not an entirely uncommon problem. In a decision in a Queensland case of Qoro (no. Q90/00019) given on 26 September 1990, the Tribunal noted evidence it had received from a senior departmental official that counter operations in the Brisbane office, coincidentally in February 1990, were "chaotic", with what was described by the official to the Tribunal as "considerable confusion attaching to the new codification process and staff...unsure of correct procedures, especially those relating to the forms which needed to be given to applicants in particular visa/entry permit classes". The witness was said to have told the Tribunal that "in February 1990, not only did counter staff not know which were the appropriate forms to hand out in many cases, but there was the additional problem of forms not being available in sufficient numbers to hand out to everyone who needed them."
As no evidence was given to me on such matters, there is no basis upon which I can draw conclusions that the same situation existed in the Bankstown office of the department at the same time and I do not do so. However, it is perhaps not inappropriate to note in passing the extensive changes in the legislative framework that were taking place at the time, the great proliferation in the types of permissions to enter and remain in Australia with the resulting significant increase in the number of forms available, and the possibility of some difficulty in staff coming to grips with the new and quite difficult order of things.
Qoro was a case where the wrong forms were handed to the applicants through what the Tribunal found was departmental "inadvertence". A time factor meant that the correct application was or may have been no longer available. The Tribunal held:
Where an applicant is led to believe by the Department itself that a form which they have handed out is the approved form for one or more applications sought to be made, and the applicant acts to his/her detriment on the basis of this advice, an estoppel may operate. ...
The Tribunal quoted the remarks of Davies and Gummow JJ in Formosa to which I have earlier referred and placed reliance on the provisions of section 123(2) of the Act that it is not bound by "technicalities, legal forms or rules of evidence" and must act in accordance with "substantial justice and the merits of the case".
In a Victorian case of Nunez (no. V90/00073) decided on 16 October 1990, a Filipino applicant with a working/social knowledge of English nominated a particular class of visa for which he wished to be considered. His nomination did not correspond with his circumstances and thus the departmental forms given to him were inappropriate for the situation. One of the forms asked him to nominate the migrant "categories" under which he wished to apply. Noting amongst other matters that the Act and regulations make no reference to "categories" as such, the Tribunal held that applicants:
should therefore not be held to their selection where it is obvious they would not succeed and where they can clearly be considered in another visa class.
The Tribunal pointed out that:
Whilst section 24 of the Act requires an applicant to make application for a visa of a particular class, there is nothing in the section which precludes the grant of a visa in another class provided at least one class is specified. Applicants should be considered in the class which best enhances their application for selection. This is especially so since the (Act and regulations) have as their dominant purpose the entry of migrants.
The Tribunal continued:
It follows that applicants should be encouraged to frame their applications in a way which maximises their chances of entry. There is no doubt that "approved" forms are both lawful and necessary... However, the contents of those forms, especially in this area where intending migrants are expected to "self select", should be interpreted flexibly, according to the merits of the individual application.
The Tribunal referred to the observations of Wilcox J in Eremin which I have quoted earlier and went on:
... in our view, where the law allows a decision-maker to consider the grant of a visa outside the "category" applied for, such consideration should take place as a matter of good administration. To do otherwise would be to force many applicants to make serial applications at considerable cost in time and money, with a constant burden on decision-makers to process extra applications from the same individual. This cannot be reasonable or just.
The Tribunal held that there was a discretion to consider granting temporary entry permits of different categories than those applied for, as well as other possibilities, and to do so outside relevant time limits.
In my opinion, the Tribunal's comments are equally applicable to temporary entry permits and section 34. Its approach was wise in fact, sensible in administrative terms, and correct in law. I respectfully agree with it entirely.
Ramani (no. N90/00203), a Sydney decision given on 29 April 1991, was a case where a particular type of visa was sought and an alternative possibility expressly disavowed. A differently constituted Tribunal came to a partly different conclusion to Nunez in relation to the meaning of section 24. Quoting from the Explanatory Memorandum to the Migration Legislation Amendment Bill 1989 to the effect:
that it is not open to consider an application for one class of visa as one also for another class of visa(,)
the Tribunal nevertheless said that although Ramani itself was not such a case:
... in certain circumstances it may be possible to consider an application for one class of visa as an application for another class, such as where there has been a mistake in the technical sense and the application is in substance inconsistent with the class applied for but obviously consistent with the class intended.
Again I respectfully agree. A technical mistake includes a situation where wrong forms provided to an applicant by the department were submitted.
To have supplied this applicant with forms quite inappropriate for his circumstances, intentions and desires, to have required him to complete and submit them, to have extracted from him one or more fees on their lodgment - all this, as it seems to me, manifested a breach of the department's duty to take reasonable care to give correct information. This breach, and the suffering by the applicant of serious loss or damage in consequence, provide the applicant with legal entitlements and establish legal consequences. Among those relevant for present purposes are that the respondents' decisions under review become infected with the taint of illegality referred to in various provisions of section 5 of the Administrative Decisions (Judicial Review) Act, as for example subsections (1)(a), (e), (f) and (j), and (2)(b), (f), (g) and (j).
In addition, the failure by the department to consider this applicant's eligibility for an entry permit under regulation 35AA and provide him with an appropriate form, or to advise him of his right to apply under that provision, denied him the procedural fairness to which he was entitled or represented a failure to take into account a relevant consideration. The same might possibly be said for regulation 120 although this is a difficult provision and may have no application here at all.
The decisions under review are set aside. The matter is remitted to the respondents for further attention and consideration in accordance with these reasons for judgment. The respondents will pay the applicant's costs.
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