Chan, K.L. v Minister for Immigration & Ethnic Affairs

[1993] FCA 921

JUDGMENT No. ........ ........ .. me*n***nnb 921 ,?3

JUDICIAL REVIEW - deportation order - whether failure to take a relevant consideration into account - whether application under - section 115 of the Migration Act 1958 [Cth] was an application for an entry permit - whether decision affirmed, varied or made by a review officer under the regulations

WORDS and PHRASES - "Entry permit" - Migration (1993) Regulations reg 7.15(d)(i)

~dministrative Decisions (Judicial Review) Act 1977 [Cth] s 5

Migration Act 1958 [Cth] ss 4, 60, 115
Migration Regulations 1989
Migration (Review) Regulations 1989 Regs 8A, 8B, 8E
Migration (Review) (1993) Regulations Regs 47, 48

Migration (1993) Regulations Reg 7.15(d)

Lek v The Minister for Immiaration. Local Government and Ethnic

Affairs Wilcox J unreported 28 June 1993

14 DECEMBER 1993

KA LEUNG CHAN V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. G 732 of 1993

EINFELD J
SYDNEY

JN THE FEDERAT. COURT OF AUSTRALIA )	PEW SOUTH WALES DISTRICT REGISTRg )	No. G 732 of 1993
GENERIG D	-	1

Between:  KA LEUNG CHW

Applicant

And:  HINISTER FOR IMMIGRATION AND
E m I C AFFAIRS

Respondent

MINUTE OF ORDEM

EINPELD J SYDNEY 14 DECEMBER 1993

1.    Amended application filed 27 September 1992 dismissed.

2.    Applicant to pay the respondent's costs on a party-party basis.

m:	Settlement and entry of orders are dealt with in
accordance with Order 36 of the Federal Court Rules.
EINPELD J  SYDNEY

14 DECEMBER 1993

JN 'lllg FEDERAL COURT OF AUSTRALIh )

SOUTH WUES DISTRICT REGISTm ) No. G 732 of 1993

GENERAL DIVISION 1

Between:  KA LEUNG ClUW

Applicant

And r MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS

Respondent

REASONS FOR JU-NT

EINFELD J SYDNEY 14 DECEMBER 1993

By an amended application filed 27 September 1993 Ka Leung Chan (the applicant) seeks judicial review of a decision by the Minister for Immigration and Ethnic Affairs (the respondent) under section 5 of the Administrative Decisions (Judicial Review)

Act 1977 [Cth] (the ADJR Act). The decision, made on 24

September 1993, was to deport the applicant from Australia under section 60 of the Migration Act [Cth] 1958 (the Act).

The applicant arrived in Australia from Hong Kong on 12 November

1983 on a temporary entry permit which expired on 6 May 1984.

Since his arrival the applicant has made a number of applications to remain in Australia, including in 1989 and 1992, all of which have been refused.

For the purpose of this judgment it is necessary to consider only one of these applications, viz. an application for refugee status made on 11 June 1992. This application was refused on 15 October 1992. On 16 November 1992 the applicant sought an internal review of that determination but the refusal of refugee status was affirmed on 10 June 1993. The applicant was taken into detention on 2 September 1993 but was subsequently released on conditions pending this judgment.

On 13 Septemberthe applicant's solicitor wroteto the respondent

asking him to exercise his discretion to set aside the refusal of refugee status. This letter purported to be an application

under section 115 of the Act. This relevantly provides:

(1 ) The regulations may provide for -

( a )	decisions o f the Minister t o be reviewed;
(b)	reviews;

the review o f f i cers who a r e to conduct such

( c )	reviews; and the manner and form o f applications for such
( d )	the persons who may apply for such reviews.

(5 ) Where the Minister thinks that i t i s i n the

public interest t o do so, the Minister may:

( a ) set aside a decision affirmed, varied or

made by a review o f f i c e r under regulations

made under subsection ( 1 ) ; and

(b)

substitute for the reviewed decision:

(i)	the primary application; or
(ii)	another decision i n terms t o which the

the decision sought by the Applicant in

applicant agrees;

(10) The Minister does not have a duty t o consider whether t o exercise the power under subsection ( 5 ) or ( 6 ) i n respect o f any decision, whether he

or she is requested to do so by the applicant or any other person, or in any other circumstances.

On 24 September 1993 a delegate of the respondent issued a deportation order against the applicant.

In the reasons for the deportation order faxed by the respondent's solicitor to the applicant's solicitor on 1 October 1993, the history of the applications for permanent residential status and refugee status was outlined under the heading:

Whether the person is an applicant for an entry penni t or has applied to a review authority following a decision by the Minister refusing to grant an entry

penni t .

With reference to the refugee application, the seasons stated:

There is no record of CHAN Ka Leung applying for review by the Immigration Review Tribunal.

No reference was made to the section 115 application although the

evidence is that the delegate of the respondent knew of this
application at the time of making the deportation order.

The applicant's primary allegation is that in exercising the deportation power under section 60 of the Act, the respondent failed to take a relevant consideration into account in

contravention of or as required by section 5(2)(b) of the ADJR

Act. Section 60(1) of the Act provides:

The Minister may, after considering the prescribed matters, and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.

The prescribed matters are set out in regulation 7.15 of the Migration (1993) Regulations (the 1993 Regulations) and relevantly include:

For the purposes of subsections 60 (1) and 82(1) of the Act, the following matters are the matters to be considered by the Minister in relation to a person referred to either of those subsections:

(d) where the person:

(i) is an applicant for an entry permit;

(ii) has applied to a review authority following a decision by the Minister refusing to grant an entry pennit .......

The applicant contended that his solicitor's attempt to activate the Minister under section 115 was or should have been treated as an application for an entry permit or an application to a

making of a deportation order which was overlooked or ignored.	review authority, and was thus a consideration relevant to the
The respondent argued that this approach is groundless because:

(i) the letter of 13 September 1993 from the applicant's solicitor to the Minister under section 115 was not an application for an entry permit under the 1993 regulations;

(ii)      it was not an application to a review authority as the Minister was not a review authority as defined; and

(iij-1 even if section 115 envisaged applications of any kind, the applicant was not eligible to apply under its provisions as his application for refugee status was not a decision that had been affirmed, varied or made by a review officer under regulations made under subsection (1) of section 115 as required by subsection (5)(a).

The respondent submitted that on its face an application to the Minister to exercise a power given under section 115 is not in itself an application for an entry permit within the meaning of the 1993 regulations. Rather is it a request for further consideration of a refusal of an entry permit by a review officer .

interpretation. Section 4 of the Act defines entry permit as	In my opinion the legislation does not support that
"permission to enter or remain in Australia". The applicant's solicitor's letter to the Minister of 13 September 1993 was clearly an application to the Minister for permission for his client to remain in Australia. I also reject the respondent's further submission that the letter cannot be described as an
application because section 115(10) provides that the Minister
does not have a duty to consider whether to exercise his discretion under section 115(5). Although the process envisaged by section 115(5) is discretionary and may be undertaken by the Minister of his own motion, it is a review mechanism which more often than not will be put in place by some type of application from the person concerned. Indeed section 115(10) speaks of a request of 'the applicant'. In my opinion the solicitor's letter to the Minister was an application for the exercise of a power under section 115 to grant an entry permit. The application was thus a factor prescribed by the 1993 regulations to be considered in the making of a deportation order. A failure to take into consideration a relevant factor in making the decision in question is susceptible to judicial review.
Although it is not therefore strictly necessary for me to consider the respondent's second submission in this regard, it is clear enough that an application under section 115 is not an application to a review authority pursuant to the 1993 regulations. Section 4 of the Act defines review authority as
officer as "a review officer" or the Immigration Review Tribunal, and review an officer of the Department prescribed for the purposes of this definition; or an officer of the Department included in a class of officers of the Department prescribed for the purposes of this definition.
The Minister is not a review authority or officer as so defined.

The respondent next submitted that he could not be said to have failed to take this relevant consideration into account as the applicant was not as a matter of law otherwise eligible to receive consideration by the Minister under section 115(5). Subparagraph (a) of this subsection requires that to be eligible for review a person must have had a "decision affirmed, varied or made by a review officer under regulations made under subsection (l)". The respondent's argument was that there was no such decision in the applicant's case.

The applicant did not seek review of the decisions to refuse his applications for resident status in 1989 or 1992. The respondent said that the failure of the applicant's application for review of the refusal to grant him refugee status was not a decision within the meaning of section 115(5) (a), as the review was an internal administrative procedure quite outside the regulations as they existed at that time.

Although they have now been repealed generally -- see regulation

Regulations) -- the Migration Regulations 1989 (the 1989

47 of the Migration (Review) (1993) Regulations (the 1993 Review

Regulations) and Migration (Review) Regulations 1989 (the 1989 Review Regulations) applied to this case as the original application was made before 1 February 1993: see regulation 48 of the 1993 Review Regulations. Regulation 8B of the 1989 Review Regulations permitted review of a decision to refuse a "prescribed permit", a term defined by Regulation 8A to mean a domestic protection (temporary) entrypermit. Regulation 8E provided:

86 (1) The applicant for a prescribed permit may

apply for review of a decision to refuse the permit,
but only if he or she:

(a)	was lawfully present in Australia when the application for the permit was lodged; or
(b)	became an illegal entrant before 1 July 1991, and:

(i) the application for the prescribed permit was lodged before 1 July 1991; or

(ii)the applicant is taken, under regulation 220 of the Migration Regulations, to have applied for the prescribed permit.

Regulation 22D of the 1989 Regulations deemed certain applications for refugee status to have effect as applications for domestic protection (temporary) entry permits if the application for refugee status was lodged before 1 July 1991. Although the applicant became an illegal entrant before 1 July 1991, he cannot be taken to have applied under regulation 22D of the 1989 Regulations for a domestic protection (temporary) entry permit before that date as his application for refugee status was

Accordingly the review of the applicant's request for refugee lodged after that date.	status was not one that was made by a review officer under the
1989 regulations: cf S 1

, S - m Wilcox J unreported 28 June 1993

at page 82. In fact the original refusal of the applicant's application for refugee status appears to have been a decision

of a body called the Refugee Status Review Committee which was

extraneous to the 1989 regulations, and as such the applicant was
not eligible for review under section 115(5).

The evidence establishes that before the respondent made the deportation order on 24 September 1993, Mr Saines of the Compliance Section at the Department of Immigration and Ethnic Affairs had several conversations with the office of the respondent regarding the status of the applicant's section 115 application. The culmination of these conversations was a facsimile transmission from the respondent's office to Mr Saines on 24 September 1993 setting out the Minister's attitude to the application. This facsimile, sent in the name of the Minister, stated (sic):

This i s to confirm our telephone conversation of earlier today regarding this request for intervention.

As discussed, I have been informed t h a t Mr Chan's application has not gone to review. The Minister's powers o f intervention under sections 115 and 137 of the Migration Act are only enlivened after one or both

of the review processes have been exhausted. mere there i s no review r i g h t or i t has not been accessed by the applicant, the Minister does not have any power to intervene.	I also advise that the powers found i n section 115 and	137 are unenforceable discretions, and there i s
nothing to compel the Minister to consider a request for intervention.
I have been informed that Mr Chan's application to the Refugee Status Review Committee (RSRC) was unsuccessful. The RSRC was an administratively based process and the decision maker was not considered a review of f icer for the purposes o f sections 115 and
137.
No further action i s required on th i s request for the
Mlnister's intervention as section 115 and 137 does
not apply to this case.

- l0 -

The deportation order was not made until after the receipt of this facsimile. Thus in exercising the power given to him under section 60 of the Act, the respondent took into account the applicant's section 115 application as prescribed by the 1989 regulations, but came to the view, correctly in my opinion, that the applicant was not eligible for review under section 115.

Accordingly I dismiss the application. The applicant is to pay the respondent's costs on a party-party basis.

I certify that this and the h;%

preced~ng pages are a true copy of the

Reasons for Judgment herein of his Honour

Justice E~nfeld

I

1 Dated: 1.3 Rq3 f

Solicitor for the	Mr D. Junn of Giles Payne
applicant	& Company
Counsel and Solicitors for	W R. Beech-Jones
the respondent	instructed by the Australian Government Solicitor

Date of Hearing	21 October 1993
Date of Judgment	14 December 1993