de Sousa, M. da C dos S v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 257

Re: MARIA DA CONCEICAO DOS SANTOS DA SOUSA and CLAUDIO MARCELO FERNANDES
And: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G22 of 1992
FED No. 257
Administrative Law

(1992) 27 ALD 473 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - judicial review - immigration - illegal entrants - conclusion by departmental officer that immigrant is illegal entrant - whether reviewable decision - application for temporary entry permit - application misconceived - application refused - whether decision maker could decline to entertain application - whether decision maker required to consider alternative bases for grant of other classes of entry permit - duty of decision maker to provide advice and assistance to applicant - legal practitioner - misconceived application.

Administrative Decisions (Judicial Review) Act 1977 s.13

Migration Act 1958 s.14(2), s.20(2), s.33, s.34, s.37

Migration Regulations 1989 reg.21, 22, 34A, 131A, 142C

Minister for Immigration Local Government and Ethnic Affairs v. Taveli (1990) 94 ALR 177

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 326

Elbourne v. Minister for Immigration Local Government and Ethnic Affairs (1991) 22 ALD 211

Minister of State for Immigration Local Government and Ethnic Affairs v. Buksh (unrep.; 13/3/92; F.Ct)

HEARING

PERTH

#DATE 8:5:1992

Counsel for the Applicant: Mr B.F. Stokes

Solicitors for the Applicant: B.F. Stokes and Associates

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

1. The application is dismissed.

2. The solicitor for the applicants to file and serve within 7

days written submissions on the question whether or not an order for costs should be made against him personally in favour of the respondent.

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

JUDGE1

Introduction

On 15 July 1991 Mrs Maria De Sousa and her 15 year old son, Claudio Fernandes, were granted permanent entry permits into Australia on the basis that Mrs De Sousa was married to an Australian citizen. On 26 July 1991 Mrs De Sousa and her husband separated. On 2 October 1991, an officer of the Department of Immigration, Local Government and Ethnic Affairs concluded that she had made misleading statements in support of her application for resident status and was therefore to be treated, along with her son, as an illegal entrant from 15 July 1991. Mrs De Sousa applied on behalf of herself and her son for temporary entry permits under concessional arrangements applying to certain classes of illegal entrant but the applications were refused. They now seek judicial review of those and related decisions.

Factual Background

1. Maria Da Conceicao Dos Santos De Sousa was born in Portugal on 31 October 1951. On 4 September 1975 she married Jose Augusto Fernandes Abelha at Ponta do Sol in Portugal. They had a son Claudio Marcelo Fernandes who was born on 11 June 1976. On 3 April 1984 a degree nisi for their divorce was issued by the Family Court at Santana in Brazil. The degree nisi became absolute on 19 February 1988.

2. It appears that Mrs De Sousa first came to Australia on 16 December 1987 on a six month visitor visa and was granted a temporary entry permit for that period returning to Brazil in June 1988. She returned to Australia with her son on 10 November 1989 and was granted a six month temporary entry permit from that date. Her father is deceased. Her mother, Maria Rodrigues Dos Santos Coelho, who was born on 23 August 1924, is an Australian citizen. Two of her brothers and two of her sisters live in Australia. Her sister, Maria, and brother, Joao Manuel Dos Santos Coelho, are Australian citizens. Her brother, Francisco, and another sister are permanent residents of Australia. On 30 March 1990 she married Martinho Araujo De Sousa, a man some 25 years her senior who had become an Australian citizen on 16 August 1989. On 4 May 1990 she applied for a permanent entry permit on the ground that she was married to an Australian citizen. In her application she said that she and her husband had first met in April 1988 at the residence of Maria Jose Coelho at South Lakes. However, in a statutory declaration also forming part of her application she said that in 1977 Mr De Sousa had been the proprietor of a delicatessen/liquor store in San Paulo, Brazil and that they had first met there. At the date of the application, she and her husband had lived together at 36 Wood Street, White Gum Valley since 30 March 1990. They had decided to get married in mid January 1990. She said that they intended to maintain a lasting marriage relationship. The application was made through her solicitor, Mr B.F. Stokes.

3. On 15 July 1991, permanent entry permits were approved for Mrs De Sousa and her son. On 26 July 1991 she and her husband separated. According to Mrs De Sousa's affidavit in these proceedings the separation was caused by his violence and abuse as a result of which she applied for and obtained a restraining order against him on 2 December 1991.

4. On 2 October 1991, Mrs De Sousa was interviewed by Mr Steve Lanyi, an investigating officer with the Department of Immigration, Local Government and Ethnic Affairs. Mr Lanyi put a number of questions to her concerning the circumstances under which she met and married Mr De Sousa. He put to her allegations made by Mr De Sousa that the marriage had, in effect, been arranged for the purpose of enabling her to obtain permanent resident status in Australia. At the conclusion of the interview Mr Lanyi said as he recorded in his notes at the time:
   

"Given the fact that you have made a specific Statutory Declaration on 04/05/90 concerning your relationship with Martinho Araujo Da Sousa, which has been refuted by your husband Martinho Araujo Da Sousa in a record of i/v dated 28/08/91 and the issues therein raised you have not been able to satisfactorily explain, which taken in conjunction with your separation from your husband one week after obtaining permanent residence in A/A supports his statements to the effect that you have used him as a basis for your obtaining a benefit from the Commonwealth of A/A, and since the Statutory Declaration you had made in support of your application for permanent resident status was false or misleading in a material particular, I am obliged to inform you that by that action you come within the scope of S.20(2) of the Migration Act 1958 as a consequence of which you and your son Claudio Marcelo Fernandes are illegal entrants in Australia pursuant to S.14(2) of the Migration Act 1958. As a consequence I shall now explain your position and the options open to you as illegal entrants."

Mr Lanyi then handed to Mrs De Sousa a form entitled "NOTICE OF INTENTION TO EXERCISE POWERS UNDER THE MIGRATION ACT 1958". By that notice she was advised that it was his intention within seven working days of the date of the notice to refer her case to the Minister or a delegate of the Minister to consider the question of the exercise of the following powers:

(a) The making of a requirement to leave Australia (subsection 82(1) of the Act, or

(b) The making of a deportation order.

The notice also informed Mrs De Sousa that she should advise Mr Lanyi immediately if any of a number of listed circumstances applied including the existence of factors she wished to have considered before the case was referred to the Minister or delegate.

1. On 8 October 1991, Mrs De Sousa's solicitors, B.F. Stokes and Associates, wrote to the Department announcing that they were acting for her and enclosing with the appropriate fee a form entitled "APPLICATION TO REMAIN PERMANENTLY IN AUSTRALIA UNDER CONCESSIONS FOR PERSONS ILLEGALLY IN AUSTRALIA". The form was of a standard type bearing the number 903. It began with a notice which read in part:
   

"IMPORTANT - PLEASE READ CAREFULLY. You should complete this form ONLY if you were illegally in Australia on or before 18 December 1989. Anyone who arrived in Australia after 18 December 1989 and wishes to seek permission to remain permanently should complete Form 887 - Application for Permission to Remain Permanently in Australia. This application must be lodged with an office of the Department before 19 December 1993. Applicants may meet the requirements for issue of an Extended Eligibility Temporary Entry Permit (EETEP) or a Permanent Entry Permit After Entry (PEPAE) based upon their relationship with an Australian citizen(s) or permanent resident(s). However that relationship must have existed on 15 October 1990 (when the concessions were announced) and continue to exist at the time the application is decided."

The opening explanation went on to advise applicants to first carefully read the leaflet "Concessions for some Illegal Entrants" and the Explanatory Notes accompanying the form. Below the opening explanation was provision for the insertion of the applicant's name. Below that were two columns in the following terms:

"1. This is an application for AND/OR an extended eligibility 2. An application for temporary entry permit in a permanent entry the following categories permit in the following categories CATEGORY NAME OF CATEGORY CATEGORY NAME OF CATEGORY 440A Spouse or de facto 812A Spouse or de facto spouse spouse 440B Dependent child 812B Dependent child 440D Illegal entrant who 812D Illegal entrant who arrived as a child arrived as a child and who has since and who has since turned 18 years of turned 18 years of age age 440C Aged parent 812C Aged parent 440E Aged dependent, 8112E Aged dependent, remaining relative, remaining relative, special need relative special need or orphan relative relative or orphan relative 440F Compassionate grounds 812F Compassionate under which hardship grounds under which would be caused to an hardship would be Australian citizen or caused to an permanent resident if Australian citizen you were required to or permanent leave Australia resident if you were required to leave Australia"

The category numbers 440E and 440F in the first column were circled and 812E and 812F in the second column were circled.

1. In the section of the application dealing with compassionate grounds it was said:
   

"Maria and Claudio have become very attached to their mother, step-father and Maria's four siblings in Australia." (sic)

The hardship or prejudice to the interests of an Australian citizen or permanent resident involved with the applicant which was relied upon to support this ground of the application related to Joao Manuel Dos Santos Coelho, Mrs De Sousa's brother. In the space provided for explaining how he would be affected if she were obliged to leave Australia, the following statement was inserted:

"ALL THE FAMILY HAVE BECOME VERY ATTACHED TO MARIA AND CLAUDIO SINCE THEIR ARRIVAL IN A/A. WHEN HER HUSBAND DESERTED HER INEXPLICABLY WE ALL RALLIED ROUND AND WISH TO SUPPORT THEM."

1. A cheque for the appropriate fee, a completed sponsorship form, a full birth certificate and translation and a Form 28 Assurance of Support were submitted with the application by Mrs De Sousa's solicitors. On the following day, further supporting documentation relating to the Australian citizenship of her siblings, birth certificates and other documents were forwarded in further support of the application.

2. The application was considered by Lynette Swarbrick, who held a relevant delegation from the Minister for the purposes of s.34 of the Migration Act 1958. Mrs Swarbrick decided to refuse the application and advised Mrs De Sousa accordingly by a letter dated 3 February 1992. The letter said, inter alia:
   

"I refer to your application to Remain Permanently in Australia which was lodged on 08 October 1991. I must inform you that after giving your case careful consideration, an authorised officer under the Migration Act (1958) has decided to refuse your application. The decision was made with reference to the Migration Act (1958), Migration Regulations, Government policy and the merits of your application. I am enclosing a copy of the record of decision which sets out, in full, the findings of fact and the reasons for the decision to refuse your application. The evidence upon which those findings of fact were based is in the file referenced above. As it has been determined by a delegated officer of this Department that you came within the scope of s.20(2) of the Migration Act (1958), you and your dependent have been deemed illegal entrants in Australia as of 15 July 1991, pursuant to s.14(2) of the Migration Act (1958). Because your application has been refused, your status in Australia continues to be that of an illegal entrant. Any person who becomes an illegal entrant is given a period of grace of twenty-eight (28) days in which to leave Australia. In your case, as you became an illegal entrant on 15 July 1991, and the period of grace had expired before you applied for this entry permit, you must immediately arrange to depart from Australia as you have now become liable for mandatory deportation."

The letter then went on to advise of review rights.

1. In a statement of reasons provided pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977, Mrs Swarbrick set out findings on material questions of fact. These findings included the fact that Mr Lanyi had determined on 2 October 1991 that Mrs De Sousa had given information which was false or misleading in a material particular in support of her original application for permanent resident status. Accepting that finding and not going behind it, Mrs Swarbrick determined that Mrs De Sousa had been an illegal entrant as from 15 July 1991. Under the heading "EVIDENCE OR OTHER MATERIAL ON WHICH MY FINDINGS WERE BASED" she referred to a number of documents which were on the file that she considered when she made her decision. It is apparent, however, that some of these documents actually played no part at all in her decision. She merely referred to them because of the importance which Mrs Da Sousa attached to them. These included medical certificates, a copy of a restraining order and a list of Mrs De Sousa's former husband's alleged criminal activities. In this respect the statement of reasons is misleading. I am reassured, having heard Mrs Swarbrick's oral testimony under cross-examination, that it was not intended to be so. It does however reflect a formula approach to the drawing up of the reasons for decision. While it is not to be expected that such reasons will be drafted with legal precision, they should reflect the actual bases upon which the decision was made - Minister for Immigration Local Government and Ethnic Affairs v. Taveli (1990) 94 ALR 177. In the event, Mrs Swarbrick's decision turned upon the language of Regulation 131A of the Migration Regulations to which the form of application 903 related.

2. The point upon which the application was refused was short. One of the prescribed criteria for the grant of a permit under Regulation 131A is that the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989. This was not the case with Mrs De Sousa. She was regarded as an illegal entrant since 15 July 1991 but prior to that date her presence in Australia had been lawful. And it was on this basis that her application was refused according to Mrs Swarbrick "as the basic legal requirements were not met". Notwithstanding that this criterion was not satisfied, Mrs Swarbrick said that she went on to assess the other criteria. Her comments regarding those claims did not form part of her decision but were included in the decision record "for the applicant's personal information". In the statement of reasons Mrs Swarbrick quoted from comments she had included in a decision record previously prepared and sent to Mrs De Sousa:
   

"I would note that, if Mrs De Sousa had become an illegal entrant on or before 18 December 1989 and as such her application would have required further consideration, it would still not have been one for approval on the information provided for the following reasons:

. she does not meet the definition of a 'remaining relative' as per Regulation 9; . her statements regarding 'compassionate grounds' do not demonstrate that "refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident" and her application cannot therefore meet the requirements of Regulation 131A(1)(v);

. the provisions for continued consideration of permanent residence applications in cases of marital breakdown due to domestic violence are found at Regulation 126 and relate only to extended eligibility

(spouse) entry permit applicants or holders. This application was not for such an entry permit, and Mrs De Sousa does not hold such an entry permit; . I consider the information on violence against Mrs De Sousa by her husband does not further any claim for consideration on 'compassionate grounds' within the ambit of Regulation 131A (noted above)." The Application for Review

1. An application for an order of review of Mrs Swarbrick's decision and what was said to be Mr Lanyi's decision to cancel Mrs De Sousa's entry permit and that of her son and what was said to be Mrs Swarbrick's decision to require Mrs De Sousa and her son to leave Australia was filed on 28 February 1992.

2. An amended application was filed on 31 March 1992 pursuant to leave given on 24 March 1992. The decisions in respect of which review was sought were identified in the amended application as follows:
   

"1. The determination made the 2nd October 1991 by the respondent's delegate STEVE LANYI that for the purposes of Sub-sec. 14(2) of the Migration Act (the Act) Sub-secs. 20(2)(b)(ii) and 35(2)(b) applied thus rendering the First and Second Applicants illegal entrants for the purposes of the Act from the 17th July, 1991; and

2. Decision made 3rd February, 1992 by the Respondent's delegate LYNETTE SWARBRICK to:-

(a) refuse the First and Second Applicants extended eligibility temporary entry permits (EETEP) for failure to meet criteria set out in Regulations 9 and 131A(1)(a) pursuant to Sec.33 of the Act; and

(b) require the First and Second Applicants to leave Australia within 28 days pursuant to Sec.82 of the Act."

At the commencement of the hearing, counsel for the respondent moved to dismiss the amended application so far as it related to the so called Decision 1 and Decision 2(b). I acceded to the application in relation to Decision 1 as there had been no legally operative determination by Mr Lanyi on 2 October 1991. He had merely concluded that misleading statements had been made in relation to the application for a permanent entry permit and that by operation of law the first and second applicants were therefore illegal entrants. This reflected a finding of fact which might be impugned in the event that he proceeded in reliance upon it to exercise any power or make any other decision authorised by the Act or Regulations. The reviewability under the Administrative Decisions (Judicial Review) Act 1977 of interim determinations of fact was considered by the High Court in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 326 and particularly at 337 in the judgment of Mason CJ where his Honour said:

"... a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment."

As his Honour pointed out at p 338, to say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to it are beyond reach:

"Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made."

Brennan J. agreed with the Chief Justice as did Deane J. subject to some observations which do not impinge on the question of what constitutes a reviewable decision. Toohey and Gaudron JJ. took a somewhat different approach in their joint judgment emphasizing that decisions reviewable under the Administrative Decisions (Judicial Review) Act were not limited to those involving the exercise of or refusal to exercise a substantive power. Even so, as they pointed out at p 377 the class of reviewable decisions is confined by the requirement that they be made "under an enactment" that is to say that they are required or authorised by an enactment. Findings not required by an enactment which bear upon some issue for determination or some issue relevant to the exercise of a discretion are not of themselves "decisions under an enactment they are merely findings on the way to such a decision". If that formulation allows a wider scope for the class of reviewable decision than that contemplated by Mason CJ, then I am bound to apply the latter.

1. In my opinion, Mr Lanyi's conclusion adverse to Mrs De Sousa was a step on the way to the making of a decision under the Act which might be the issue of a notice under s.82 requiring her and her son to leave Australia or the making of a deportation order. His conclusion may be attacked if either of those decisions is made and amenable to review under the Administrative Decisions (Judicial Review) Act. But beyond serving the notice of intention to proceed, Mr Lanyi had taken no further step toward making either of those decisions.

2. So far as Decision 2(b) was concerned, it was in the event uncontested that Mrs Swarbrick had made no requirement pursuant to s.82 of the Act as alleged and that she had no delegation to make any such requirement. Her letter of 3 February 1992 to Mrs De Sousa, whilst indicating that Mrs De Sousa had an obligation to immediately depart from Australia as she had become liable to mandatory deportation, was not of itself a s.82 notice. The application was dismissed in respect of this decision also and proceeded solely in respect of the decision by Mrs Swarbrick to refuse the application under Regulation 131A and 142C.
   

Grounds of the Application for Review

1. The grounds of the amended application for review so far as they related to Decision 2(a) were as follows:
   

"1. The making of the said decisions was an improper exercise of power contrary to s.5(1)(e) of the Act in that the respondent's delegate failed to take into account relevant considerations contrary to Sec.5(2)(b) of the Act namely: .

.

.

1.22 As to decision 2(a)

(g) the eligibility of the first and second applicants pursuant to Sec.33(2) and Reg.126 of the Act;

(h) whether acceptance of the Application on 9th October 1991 and its subsequent processing estopped the respondent from refusing to consider eligibility under Reg.126;

(i) the husband continuing violence of and abuse towards the first applicant which commenced on 26 July 1991 which required a restraining order on 2nd December 1991 be taken out against him by the first applicant; and

(j) the husband's previous criminal record and his incestuous behaviour towards his previous family.

.

.

.

1.4 The making of the said decisions were in all the circumstances known to the said delegates, so unreasonable pursuant to Secs.5(1)(e) and 2(g) of the Act (sic). PARTICULARS

(a) the marriage breakdown on 26 July 1991 was not caused through any actions of the first applicant but through the outrageous behaviour of the husband;

(b) the decisions had the effect of punishing the first applicant who was blameless; and

(c) the decisions have the effect of promoting or at least not deterring domestic violence in the families of clients of the respondent throughout Australia." Statutory Framework

Migration Act 1958

1. Section 14(2) provides:
   

"14(2) Where a person to whom subsection 20(1) or (2) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:

(a) remains in Australia;

(b) is not a citizen; and

(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa."

Section 20(2) provides:

"20(2) This subsection applies to a person, being a non-citizen, who has entered Australia whether before or after the commencement of this section, if: .

.

.

(b) in respect of the grant of that entry permit:

.

.

.

(ii) the person made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, a statement that was false or misleading in a material particular;"

Section 33 of the Act authorises the making of regulations in relation to the granting and refusal of entry permits (s.33(1)). Such regulations may provide for different classes of entry permits and that subject to ss.40 and 45 a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class (s.33(2)).

1. Section 34 of the Act deals with the grant or refusal of entry permits in the following terms:
   

"34(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;

(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 must:

(a) if regulations made under paragraph 181(1)(h) require an assurance of support to be given in relation to the applicant in respect of the applicant seeking to enter, or remain in Australia - give to the applicant written notice stating that an entry permit cannot be granted unless the charge payable under the Migration (Heath Services) Charge Act 1991 has been paid; and

(b) 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."

Of practical importance in the present case is s.37 of the Act which provides:

"37(1) This section applies to an illegal entrant who:

(a) has entered, and remains in, Australia;

(b) while in Australia, has been refused an entry permit; and

(c) is not a person to whom section 36 applies because of section 121.

(2) Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:

(a) there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and

(b) no deportation order has been made in respect of that person under section 59."

Migration Regulations 1989

1. For the purposes of para.33(2)(a) of the Act the various classes of entry permits are specified in Schedule 3 to the Regulations. (Reg.21) Regulation 22(1) provides:
   

"22(1) Subject to this regulation and regulation 34, an application for an entry permit is in accordance with these regulations:

(a) where the applicant applies after entering Australia:

(i) if the application is in the form approved by the Minister for the purposes of this provision; and

(ii) if the relevant fee has been paid; and

(iii) if the applicant produces to an officer the passport or other document produced by the applicant for the purposes of his or her entry to Australia, or a valid travel document;..."

Regulation 34A requires an applicant for an entry permit to satisfy the prescribed criteria in relation the relevant class of entry permit (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time. Under reg.42 and subject to ss.40 and 45 of the Act, which are not material for present purposes, a person is entitled to be granted an entry permit if the person satisfies the prescribed criteria in relation to it.

1. Regulation 131A relates to what is described as a December 1989 (Temporary) Entry Permit. The regulation is in the following terms:
   

"131A(1) The following criteria are prescribed in relation to December 1989 (temporary) entry permit:

(a) the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;

(b) the applicant has not left Australia after 18 December 1989;

(c) the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit;

(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:

(i) the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or

(ii) the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or

(iii) the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or

(iv) the applicant is:

(A) an aged dependent relative; or

(B) an orphan relative; or

(C) a special need relative; or

(D) a remaining relative within the meaning of regulation 9;

of a settled Australian citizen or settled Australian permanent resident; or

(v) there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident;

(e) if, in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support, an assurance of support satisfactory to the Minister has been given; .

.

.

(g) the applicant has been nominated by the relevant related person referred to in paragraph (d);

(h) the applicant notifies the Department, without unreasonable delay, of each change of his or her residential address.

(2) In this regulation, "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence."

Regulation 142C refers to a December 1989 (Permanent) Entry Permit and is in the following terms:

"142C. In relation to a December 1989 (permanent) entry permit, the additional criterion is that the applicant for the entry permit is the holder of a December 1989 (temporary) entry permit at the time when the Minister decides to grant or not to grant the entry permit."

1. Reference was made in Mrs Swarbrick's reasons for decision to the possibility of an application under reg.126 which relates to the Extended Eligibility (Spouse) Entry Permit. The criteria prescribed under that Regulation for an Extended Eligibility (Spouse) Entry Permit include the requirements that at the time when the application is decided the applicant is the spouse of an Australian citizen or Australian permanent resident who was the applicant's spouse when the application was made, who has nominated the applicant for the grant of the entry permit and who has a marital relationship with the applicant that is genuine and continuing. Further, it is a requirement that the applicant is not an illegal entrant other than certain categories of illegal entrant, none of which are relevant for present purposes. The requirement for a genuine and continuing marital relationship specified in Reg.126(1)(a)(E) does not apply if a court has made a restraining order or granted an injunction against the applicant's spouse in respect of violence by the spouse against the applicant. (reg.126(1A)).

2. Schedule 3 of the Migration Regulations 1989 sets out classes of entry permits relating to permanent and temporary residents respectively and assigns to each a code number. The December 1989 (temporary) entry permit available under reg.131A is given the code number 440. The December 1989 (permanent) entry permit under reg.142C is given the code number 812. These numbers are the code numbers which appear on the first page of the form 903 application submitted to the Department by Mrs De Sousa's solicitor on 8 October. To a legal practitioner familiar with the provisions of the Act and Regulations there should be no doubt that the application was for permits under regs.131A and 142C respectively and for no others.
   

The Merits of the Application for Review

1. Whether or not Mrs De Sousa had been an illegal entrant from 15 July 1991 as Mr Lanyi concluded, she had not been a prohibited non-citizen on or before 18 December 1989. When she entered Australia in November 1989 she did so as the holder of a six month temporary entry permit. That permit was still in force on 18 December 1989 and she was lawfully in this country. In the circumstances it could be asked whether Mrs Swarbrick was required to consider the application at all. If it could be said that the application was not in accordance with the regulations then s.34 would not apply and by virtue of s.34(2) the Minister's delegate would not be required to consider it. Such a decision might fall short of a refusal and therefore not attract the operation of s.37. It is not necessary however, to determine that latter point in this case for, in my opinion, it cannot be right to say that Mrs De Sousa's failure to meet one of the prescribed criteria means that her application was otherwise than "in accordance with the regulations".

2. It could perhaps have been argued that it was open to Mrs Swarbrick in any event to decline to entertain the application, inform Mrs De Sousa that it was misconceived and advise her to reconsider her position. Again, it is not necessary to decide that question although it seems likely that once the conditions specified in sub-s.34(1) for the application of s.34 have been satisfied there are only two options open to the decision-maker, namely to grant or refuse the application. If, contrary to that hypothesis, s.34 does not compel the decision-maker to one of those options, then it would have been open to Mrs Swarbrick to point out that the application was misconceived and should be withdrawn. Davies J. said in Elbourne v. Minister for Immigration Local Government and Ethnic Affairs (1991) 22 ALD 211 at 212 "good administration does not preclude the giving of help and assistance when it appears to be needed". But in the same passage his Honour also said:
   

"But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made. Indeed, s.34 of the Act provides that a person making an application for an entry permit shall make application for an entry permit of a particular class in accordance with the regulations and, until that has been done, the minister 'is not required to consider an application at all'."

The Full Court of the Federal Court in Minister of State for Immigration Local Government and Ethnic Affairs v. Buksh (unrep. 13/3/92 F.Ct.) at p 15 expressly approved his Honour's observations. In this case Mrs De Sousa's application, although misconceived, was made by a solicitor acting on her behalf. There was therefore, in my opinion, no requirement of procedural fairness in the case by which, if she were free to do so, Mrs Swarbrick could have been required to invite Mrs De Sousa to reconsider and withdraw the application.

1. The complaint was made in the first ground of review that Mrs Swarbrick had failed to take into account the eligibility of the applicant under s.33(2) and reg.126. That could only be a relevant consideration if it were possible, on an application for the grant of a temporary entry permit under reg.131A, to grant a permit of the kind contemplated by reg.126. The Full Court in Buksh left open the question whether s.34 of the Act precludes the Minister or delegate granting an entry permit of a class other than that applied for provided that the applicant satisfied the prescribed criteria. Even if it be the case that the power to grant a different kind of permit existed, this ground of the application for review is answered by considerations akin to those which lead to the conclusion that procedural fairness did not require the delegate to advise that an application under reg.131A and 142C could not succeed. Mrs Swarbrick was asked to consider an application regular on its face and evidently prepared by or with the assistance of a legal practitioner. It invited her, in effect, to consider the criteria prescribed under reg.131A and 142C. Assuming it was open to her to grant another class of permit, it cannot be said, in the circumstances, that she was obliged to consider criteria for the grant of any class of permit which had not been applied for. This aspect of the first ground of review therefore fails. The considerations which it is alleged she failed to take into account were not relevant to the exercise of the power to grant a permit of the class for which Mrs De Sousa had applied. It follows that she was not obliged to take them into account either. In this respect therefore the application fails. It also fails on the second ground of review relating to the alleged unreasonableness of the decision. That was barely argued and plainly unsustainable.
   

CONCLUSION

1. For the reasons expressed above the application for review must be dismissed. In so deciding, I express my concern that the applicants had lodged an application for entry permits under regs.131A and 142C which was apparently prepared by or with the assistance of their solicitor and was completely misconceived. So too in the event were these proceedings. Also of serious concern is the fact that the lodgement and rejection of the application for a temporary entry permit under reg. 131A may preclude Mrs De Sousa and her son from applying for any other class of permit unless the limited conditions for which s.37 provides are satisfied. In the circumstances it seems to me that consideration ought to be given to an order that the applicants' solicitor pay the costs of the application.