Eremin v Minister for Immigration, Local Government and Ethnic Affairs

Re: ALEXANDER EREMIN
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G440 of 1990
FED No. 460
Citizenship, Immigration and Emigration - Administrative Law - Statutes
21 ALD 69

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Gummow(1) and Foster(1) JJ.

CATCHWORDS

Citizenship, Immigration and Emigration - immigration - scheme of 1989 amendments to Migration Act 1958 and regulations thereunder - refusal of temporary entry permit to illegal entrant - Migration Act 1958 ss. 33, 34, 37, 47, 60; Migration Regulations rr. 34A, 40, 42, 129.

Administrative Law - natural justice - whether decision-maker obliged to determine if Gazette notice ought to be published rather than simply whether notice had been published.

Administrative Law - whether excess of regulation making power conferred by enabling legislation - unreasonableness.

Statutes - interpretation - alternative construction of regulation, if fairly open, preferred if harmonious with other provisions and if preserves validity of regulatory scheme.

Words and Phrases - "such".

Acts Interpretation Act 1901

Migration Act 1958

Administrative Decisions (Judicial Review) Act 1977

Migration Legislation Amendment Act 1989

Migration Legislation Amendment (Consequential Amendments) Act 1989

Migration Legislation Amendment Act (No. 2) 1989 Migration Regulations

JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161

Morton v The Union Steamship Company of New Zealand Limited (1951) 83 CLR 402

Kruse v Johnson (1898) 2 QB 91

Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne (1933) 49 CLR 142

The Mayor, Councillors and Citizens of the City of Brunswick v Stewart (1941) 65 CLR 88

Carter v The Egg and Egg Pulp Marketing Board for the State of Victoria (1942) 66 CLR 557

King Gee Clothing Company Proprietary Limited v The Commonwealth (1945) 71 CLR 184

The Council of the City of Parramatta v Pestell (1972) 128 CLR 305

Foley v Padley (1983) 154 CLR 349

Olsen v City of Camberwell (1926) VLR 58

Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297

Shanahan v Scott (1957) 96 CLR 245

Widgee Shire Council v Bonney (1907) 4 CLR 977

McCarthy v Madden (1914) 33 NZLR 1251

Attorney-General (NSW) v Quin (1990) 64 ALJR 327

HEARING

SYDNEY

#DATE 31:8:1990

Counsel and solicitors C.J. Stevens Esq. and
for the appellant: I.M. Jackman Esq.

instructed by Adrian Joel and Company.

Counsel and solicitor P. Roberts Esq. instructed
for the respondent: by the Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

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

JUDGE1

On 3 April 1990, a delegate of the respondent ordered, pursuant to s. 60 of the Migration Act 1958 ("the Act"), that the appellant, as an illegal entrant, be deported from Australia. Previously, on 27 March 1990, the appellant's applications for two categories of temporary entry permit had been refused. On 11 April 1990, the appellant instituted proceedings in this Court seeking an order of review under the Administrative Decisions (Judicial Review) Act 1977. He sought review of the decisions in respect of both the temporary entry permits and the deportation order. The application was heard on 24 and 25 July 1990 by Wilcox J. On 1 August 1990 his Honour delivered Reasons for Judgment and ordered that the application be dismissed. On 10 August 1990, Wilcox J., by consent, ordered that pending the determination of the present appeal execution of the deportation order against the appellant be stayed. His Honour also ordered that the hearing of the appeal be expedited.

The appellant was born in 1957 and is a citizen of the Union of Soviet Socialist Republics ("the USSR"). He was born in the Stavropolsk region of the Russian Federation, but later made his home in the town of Vinnitza in the Ukraine. The appellant is married with two children, the elder of whom was born in 1984 and the younger in 1989.
The appellant arrived in Australia on 26 February 1990 as a crew member of the cruise vessel "Taras Shevchenko" which docked in Sydney on that day. The appellant left the ship without permission of the captain and made his way to the police station at Surry Hills, an inner Sydney suburb, where he expressed a desire to remain in Australia. He was arrested, pursuant to s. 92 of the Act, and taken to the Immigration Detention Centre at Villawood.
On 28 February 1990, the appellant applied for what is described in the evidence as "Refugee Status" but this application was rejected on 12 March 1990. No question in the present proceedings arises concerning the rejection of that application. On 2 March 1990, the appellant completed (with assistance) further forms, the effect of which was that he made application for the grant to him of one or both of two classes of temporary entry permit, an extended eligibility (economic) entry permit and an extended eligibility (other) entry permit. Both of these applications were refused on 27 March 1990 and the order for deportation, to which we have referred, was then made. As the proceedings were conducted before the learned primary Judge, the appellant contested only the decision to refuse him an extended eligibility (other) entry permit, and there was no dispute as to the validity of the refusal of the extended eligibility (economic) entry permit.
In support of both of the entry permit applications, the appellant had relied upon various grounds. He said that he was a marine electrician with special skills. He also said that a political, social, religious or ethnic group to which he belonged had become subject to significant policy changes involving repression or restriction. In particular, he said that whilst he had been on the ship (it seems on 20 February 1990) there had been posted a notice to the effect that, as the result of a policy change in the relationship between the constituent republics of the USSR, each republic might now deport people not born in its territory to their republic of origin; his home town in the Russian Federation was one of a number of cities shown in the notice as cities to which persons might be returned. The appellant said that as a Russian presently living in the Ukraine, he and his family would be forced to return to the Russian Federation, that he would be sent to prison for up to 15 years, his children would not be entitled to tertiary education or any senior positions in the future, his wife would not be allowed to work at her profession, and his family would never be allowed to hold passports.
The appellant worked as a storeman in the food, alcohol and tobacco store on the vessel. In his evidence at the trial, he referred to conflicts with senior crew members as a result of his refusal to supply "the captain, the first mate and the KGB" with whisky, cigarettes, vodka and other items from the store. The appellant said he feared retaliation which would mean the end of his career in the merchant marine; he became aware that on arrival of the vessel in Singapore, he was to be put off the vessel and sent back to Russia. He said that avoidance of this fate was his "primary motive" in leaving the vessel without permission.
In order to appreciate the way the matter was put both at first instance and on appeal, it is necessary to appreciate the legislative background. Substantial changes to the Act have been made by the Migration Legislation Amendment Act 1989, the Migration Legislation Amendment (Consequential Amendments) Act 1989 and the Migration Legislation Amendment Act (No. 2) 1989. The Migration Regulations ("the Regulations") have been made under the regulation making powers contained in the Act. The Regulations have been amended on a number of occasions in the course of this year. For example, the criteria for the extended eligibility (economic) entry permit have been changed since the occurrence of the events with which this litigation is concerned.
In the event, as we have indicated, this Court has not been concerned with the appellant's application for an entry permit of this kind. The Court is concerned with the extended eligibility (other) entry permit application. However, as it happens, this particular kind of entry permit has been abolished, with the notification on 12 July 1990 of the relevant portion of Statutory Rules No. 237 of 1990, which repealed the previous r. 129 of the Regulations and amended Schedule 3 Part 3 to the Regulations by omitting item 26. Item 26 had identified "extended eligibility (other)" as a class of entry permit and r. 129 had prescribed the necessary criteria for the grant of such an entry permit.
But the present proceedings have been conducted on the footing that these supervening changes have not had any determinative effect upon the outcome of the litigation because the appellant had a right which had accrued to him under the repealed regulation, in conjunction with the unamended Schedule; it has been assumed that this "accrued right" was not "affected" by what occurred, by reason of the savings provisions of s. 50 of the Acts Interpretation Act 1901. The point was not taken up by counsel for the respondent. Whilst the matter is by no means free from doubt, we are prepared to deal with the appeal on this footing, because, as will later appear, we have reached the conclusion that the appeal fails in any event. Thus, it is unnecessary to embark upon the applicability to the circumstances of this litigation of the reasoning in the relevant authorities upon provisions such as s. 50, which were collected and discussed by the Full Court in J.R. Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161.
Section 71 of the Act obliged the master of the vessel carrying the appellant, upon arrival at Sydney (as a proclaimed port) and if so required by an officer (within the meaning of the Act) to produce an identity document in respect of each member of the crew on board the vessel. Section 74 imposed an obligation to report the absence of any member of the crew at the time of departure of the vessel from the port.
The appellant, as a non-citizen, who was not the holder of a valid entry permit, became an illegal entrant within the meaning of sub-s. 14 (1) of the Act and liable to deportation under s. 60. Sub-section 14 (1) would not have applied to him if he had entered Australia as an "exempt non-citizen": sub-s. 15 (1). The appellant might have had that status if he had entered Australia with leave from his ship; see para. (d) of the definition of "exempt non-citizen" in sub-s. 4 (1). But he could not continue to be an "exempt non-citizen" if, as was the case, he became absent from his ship without leave or he remained in Australia after his ship left Sydney. This follows from para. 9 (c) of the Act.
The Act and the Regulations provide for a multitude of species of entry permit, but they fall into two relevant groups, namely "temporary entry permits" and "permanent entry permits". The former is, and the latter is not, subject to a limitation as to the time the holder is authorised to remain in Australia. This follows from the terms of the definitions of the two expressions in sub-s. 4 (1) of the Act. Further, the Minister may at any time, as a matter of absolute discretion, cancel a temporary entry permit: sub-s. 35 (1).
A permanent entry permit cannot be granted to a non-citizen such as the appellant after entry into Australia unless at least one of the seven paragraphs in sub-s. 47 (1) applies to him. In six of these paragraphs (the remaining paragraph not being relevant), one of the criteria is the holding of a "valid temporary entry permit". (The odd use of the adjective "valid" in this expression is explained by an awkwardly drawn definition in sub-s. 47 (7); there is a definition in sub-s. 4 (1) which explains the use of the expression in other sections by the unhelpful tautology "'valid temporary entry permit' means a temporary entry permit that is a valid entry permit". But it is unnecessary to pursue further, in this case, these uses of the term "valid".)
The point is that without a temporary entry permit, the appellant had no prospect of obtaining a permanent entry permit. Of course, even if he did obtain a temporary entry permit, that would not be sufficient because each paragraph of sub-s. 47 (1) stipulates at least one further criterion. One is the written determination by the Minister that the non- citizen has the status of a refugee within the meaning of the 1951 Convention or the 1967 Protocol: para. 47 (1) (d). Hence, the importance to the appellant of his (unsuccessful) application for "refugee status".
If the appellant did obtain a temporary entry permit and there were "strong compassionate grounds" or "strong humanitarian grounds" for the grant of a permanent entry permit to him, then the barrier to grant thereof imposed by sub-s. 47 (1) would be removed: paras. (f), (g) of sub-s. 47 (1). But, as it has happened, before the deportation order was made, the appellant never got to the first stage of the issue to him of a temporary entry permit.
The respondent is not required to consider an application for an entry permit unless there has been made an application for an entry permit of a particular class in accordance with the Regulations and any applicable fee has been paid; where it appears to the respondent that the applicant is, under the Regulations, entitled to be granted an entry permit of the class concerned, he shall, subject to the other provisions of Division 3 of Part 2 of the Act, grant to the applicant the entry permit in question; where it appears to the respondent that the applicant is not, under the Regulations, entitled to be granted an entry permit of the class concerned, he shall refuse to grant it. This is the effect of s. 34 of the Act.
As will be apparent, s. 34 assumes the classification of entry permits in accordance with the Regulations made under the Act. Section 181 confers upon the Governor-General in Council a regulation making power which is supplemented by s. 33. The Regulations may make provision for different classes of entry permits and subject to ss. 40 and 45 of the Act (which are not presently material) the Regulations may provide that 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: sub-s. 33 (2).
So far as presently relevant, r. 42 is as follows:

"42. (1) . . . a person is entitled to be granted an entry permit of a class specified in these Regulations if the person satisfies the prescribed criteria in relation to that class of entry permits.

(1A) The following criteria are prescribed in relation to entry permits . . .:

(a) where the applicant for the entry permit:

(i) has been an illegal entrant for less than 12 months; and

(ii) has been arrested under section 92 or 93 of the Act; that the applicant lodges the application for the entry permit not more than 2 working days after being first so arrested; . . ."

Sub-regulation (1A) was inserted by r. 10 of Statutory Rules No. 34 of 1990, which took effect on 20 February 1990. (It itself was then amended, with effect from 31 May 1990, by r. 5 of Statutory Rules No. 109 of 1990, something to which we will return later in these reasons.) Regulation 21 prescribes, by reference to Schedule 3 and to Divisions 4, 5 and 6 of Part 3 of the Regulations, the classes of entry permits for the purposes of sub-s. 33 (2) of the Act. Item 26 in Schedule 3 Part 3 identifies as a class of temporary entry permit "extended eligibility (other)". An applicant for an entry permit must satisfy the prescribed criteria, other than "public interest criteria" and "prescribed health criteria" at the time of application and as applicable at that time, unless the Regulations otherwise provide: r. 34A.

Regulation 129, which appears in Division 5 of Part 3, prescribes the criteria in relation to an extended eligibility (other) entry permit. As will be apparent from the text of r. 129, these criteria, as they applied after the arrival of the applicant in Australia, operated by reference to the specification of various states of affairs by the respondent by notice published in the Gazette. It is common ground that there has been no such specification pertaining to any situation in the USSR, relevant or allegedly relevant to the appellant.
So far as is material, r. 129, so far as is relevant, is in the following terms:

"129. The following criteria are prescribed in relation to an extended eligibility (other) entry permit:

(a) after the arrival of the applicant in Australia:

(i) a substantial political upheaval involving individual danger to the applicant:

(A) has taken place in the applicant's usual country of residence; and

(B) has been specified by the Minister by notice published in the Gazette as such an upheaval; or

(ii) a major natural disaster, involving the destruction of the applicant's home and livelihood:

(A) has taken place in his or her usual country of residence; and

(B) has been specified by the Minister by notice published in the Gazette as such a disaster; or

(iii) significant changes, involving significant repression of a political, social, religious or ethnic group or body of which the applicant is a member:

(A) have taken place in the applicant's usual country of residence; and

(B) have been specified by the Minister, by notice published in the Gazette, as such significant changes; with the result that there is a substantial probability that the applicant personally will suffer serious and lasting consequences;

(b) . . .;

(c) . . .;

(d) . . ."

When refusing the application for the extended eligibility (other) temporary entry permit, the decision maker accepted the advice in para. 16 of the Assessment Report dated 27 March 1990. This was as follows:

"16. In regard to Mr Eremin's application for (this permit) on the grounds of Other Prescribed Circumstances, it is submitted that the events described by Mr Eremin did not take place after his arrival in Australia and have not been Gazetted by the Minister. In view of this it is submitted that he does not satisfy criterion (a) in Regulation 129 and therefore you should refuse to grant Mr. Eremin (this permit) on the grounds of Other Prescribed Circumstances."

Before Wilcox J., the appellant unsuccessfully contended that the regulation making powers contained in the Act did not extend to the making of a regulation such as r. 129 enabling the respondent to determine whether a particular event answered the description of a substantial political upheaval, a major national disaster or significant changes involving significant repression of a particular group. His Honour referred to the expression of the regulation making power in s. 181 of the Act in terms of what was "necessary or convenient . . . for carrying out or giving effect to this Act" and to the wide terms in which s. 33 was framed; in particular, sub-s. 33 (2) specifically envisaged the making of regulations which provided for different classes of entry permits and which prescribed the criteria for each class. After referring to what had been said in the High Court of Australia in Morton v The Union Steamship Company of New Zealand Limited (1951) 83 CLR 402 at 410, his Honour concluded that r. 129 fell within the enabling provisions of the Act.
At first instance, the appellant also submitted that given the critical effect of the existence or non-existence of a specification by the respondent for the purposes of r. 129, upon the receipt of the appellant's application for an extended eligibility (other) entry permit, the respondent came under "an obligation of natural justice" to determine whether or not to specify the event alleged by the appellant as answering one of the descriptions in r. 129. In particular, the case put for the appellant below was that the changes in the relationship between the Ukraine and the Russian Federation, which we have outlined, might properly be regarded as "a substantial political upheaval involving individual danger to the applicant" or as "significant changes, involving significant repression of (an) ethnic group or body" within the meaning of r. 129.

It was further submitted that, having paid the application fee, the appellant had a legitimate expectation that the respondent would consider on the merits whether his application should be granted, and that this necessarily involved consideration of whether r. 129 could be made to apply to the circumstances upon which he relied, by the publication of an appropriate notice in the Gazette.
His Honour held, (a) that whilst the obligation of procedural fairness required the decision maker to ascertain whether a relevant Gazette notice had been published, there was no necessity for the respondent to consider whether he ought to publish such a notice to meet the case of a particular applicant, and (b) that the provision in r. 129 for publication of notices in the Gazette was not directed to the circumstances of any particular applicant, and that rather r. 129 was intended to have an ambulatory operation in respect of such events as might occur and be specified from time to time.
Upon the hearing of the appeal, counsel for the appellant put various submissions, some in the alternative, and in order to assess them, it is necessary first to reach a view as to the correct construction of r. 129. It was submitted for the appellant that a notice published in the Gazette must be in respect of an event described by reference to the personal circumstances of the applicant in question; the expressions in sub-paras. (a) (i), (ii), (iii), "such an upheaval" and "such a disaster" and "such significant changes", were said to link the specification in the notice back to the compound expressions "a substantial political upheaval involving individual danger to the applicant", "a major natural disaster, involving the destruction of the applicant's home and livelihood", and "significant changes, involving significant repression of a . . . group or body of which the applicant is a member".
Then it was said that the regulation was self-contradictory because it envisaged gazettal prior to the making of the application in question. The result was said to be that para. (a) of r. 129 was invalid as an unreasonable exercise of the regulation making powers in the Act, and so not a real exercise of the power, within the sense of the line of authority commencing with Kruse v Johnson (1898) 2 QB 91 at 99-100, and including Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne (1933) 49 CLR 142 at 154-155; The Mayor, Councillors and Citizens of the City of Brunswick v Stewart (1941) 65 CLR 88 at 97, 99; Carter v The Egg and Egg Pulp Marketing Board of the State for Victoria (1942) 66 CLR 557 at 576-577, 584-585, 591-593, 599- 600; King Gee Clothing Company Proprietary Limited v The Commonwealth (1945) 71 CLR 184 at 194; The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 327 and Foley v Padley (1983) 154 CLR 349 at 353, 375. If that submission were accepted, an issue would then arise as to whether para. (a) was severable or the whole of r. 129 fell with it: Olsen v City of Camberwell (1926) VLR 58 at 68.
But in our view, despite its initial attractiveness, and the linguistic force of the use of the word "such", the first step in this argument fails. Regulation 129 is an integer in a scheme evidently designed to promote the making of speedy decisions by those charged with day to day administration of it, so that officers should not be placed in the position of having to make their own assessments of political upheavals, natural disasters and repression of various groups in other countries. The administration of the legislation would be impeded rather than assisted if the questions of specification by the Minister had to be considered by reference to each individual applicant. One may concede the support for the argument which is derived from the juxtaposition of the word "such" in relation to the opening words of each of the sub-paras. of para. 129 (a). Nevertheless, one should strive, if it is fairly open, to prefer a construction which is harmonious with the other provisions of the legislation: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 304-305, 310-311, 319-321. This must also be so where another construction would avoid debate as to the validity of delegated legislation which is part of the scheme in question.
The purpose of the provisions dealing with gazettal is to provide for the decision maker in the particular case an objective criterion as to the existence or otherwise of, for example, a substantial political upheaval in a country which the decision maker is satisfied is the usual country of residence of the applicant. It is then a question for the decision maker in the particular case whether, for example, the individual danger to the applicant by reason of that political upheaval is such that there is a substantial probability that the applicant personally will suffer serious and lasting consequences. In answering that question, it may be in a particular case that the decision maker is under a duty to make reasonable enquiries to ascertain the true position.
The provisions dealing with the making by illegal entrants of successive applications are consistent with the construction we would give r. 129.
Where an illegal entrant has been refused an entry permit, he or she is not entitled to make any further application for an entry permit (subject to the application of provisions dealing with the review of decisions) whilst he or she remains in Australia, unless no deportation order has been made under s. 59 and, since the last application was made for an entry permit, there has been a prescribed change in the applicant's circumstances: s. 37. The changes are prescribed by r. 40 and include the grant of refugee status by the Minister and the matters described as follows in paras. (e), (f) and (g) of sub-r. 40 (1):

"(e) a substantial political upheaval involving significant danger to persons or significant repression, or both:

(i) has taken place in the person's usual country of residence; and

(ii) has been specified by the Minister by notice published in the Gazette as such an upheaval;

(f) a major natural disaster, involving the destruction of the person's home and livelihood:

(i) has taken place in his or her usual country of residence; and

(ii) has been specified by the Minister by notice published in the Gazette as such a disaster;

(g) significant changes, involving significant repression of a political, social, religious or ethnic group or body of which the person is a member have taken place in the person's usual country of residence;"

The appellant submitted that these paragraphs were so drawn as to indicate concern with a general state of affairs rather than the circumstances of the applicant; it was then said that a contrasting mode of expression had been employed with para. 129 (a) and the contrasts supported the submissions made as to the correct construction of para. 129 (a). However, we believe the contrary inference is to be drawn. If the prescribed circumstances exist in a particular case, the condition imposed by s. 37 upon the making of further applications is satisfied. It will then be open for the illegal entrant to make a fresh application and this will involve consideration of the circumstances of the individual concerned. In the case of both initial and subsequent applications, the existence of the appropriate Gazette notice will be an essential criterion, operating in general terms, not by reference to individual circumstances.
If r. 129 be construed in the way we have explained, then, as we understood him, the appellant's counsel conceded that the ground for the attack on validity fails.
The appellant then submitted that if the regulation be construed in the manner we have accepted as correct, then in the case of a person in the position of the appellant, where no relevant gazettal had taken place, it was incumbent upon the decision-maker to consider whether such a notice should be published; it was said that failure to fulfil this obligation was a breach of procedural fairness. We agree with the learned primary judge, for the reasons he gave, that the decision-maker dealing with the application of a particular person does not have to consider whether there should or should not be a notice published by the Minister in the Gazette. In addition, it is to be remembered that the criteria prescribed by r. 129 are to be satisfied by the applicant at the time of the application and as applicable at that time: r. 34A. The relevant criterion in r. 129 is that the event or circumstances in question "has (or have) been specified" in the Gazette.
The appellant also submitted that para. 129 (a) was beyond the regulation making power in the sense discussed in Morton v Union Steamship (supra) and Shanahan v Scott (1957) 96 CLR 245 at 250, because the question whether any of the events or circumstances stipulated therein existed was one of fact, yet the Minister might be blind to the fact and not publish the appropriate notice.
The regulation uses terms such as "substantial", "significant" and "major". Thus, questions will arise as to the state of affairs in other countries which involve issues which are very much of degree rather than simply of indisputable "fact", as the appellant's submission would have it. The resolution of such issues is conveniently reposed in the Minister, so that the legislation may be effectively and fairly administered. The submission of the appellant on this point came down to the proposition that if an applicant can show a substantial political upheaval or major natural disaster or significant changes in his or her home country which have the specified effects upon the applicant, then the applicant "should not be frustrated by the unnecessary and inconvenient hurdle of proving Gazette notification". No doubt the operation of r. 129 may be seen as harsh in some respects, but it has been drawn in a manner which to us appears consistent with a legislative scheme with some draconian characteristics. But the scheme reflects a policy, the formulation or criticism of which is not for the judicial branch of government.
It follows from what we have said that the appeal fails and should be dismissed with costs.
There is, however, one question which was argued upon which, in response to the carefully prepared and presented arguments on the appeal, we should express provisional views. It concerns what was called the "two day point". We have set out sub-r. 42 (1A) as it stood when the appellant arrived in Sydney on 26 February 1990 and was arrested. The application for the relevant entry permit was not made until 2 March 1990. That was outside the two working day period after his arrest, as specified in sub-r. 42 (1A). It follows, counsel for the respondent submitted, that a prescribed criterion in relation to the entry permit had not been satisfied and that the application had been doomed from the start.
On its face, sub-r. 42 (1A) applied to the application the subject of this appeal, and was mandatory in character. However, counsel for the appellant submitted that the provision was "unreasonable" and not a real exercise of the regulation making powers in the Act, within the meaning of the authorities we referred to above. Plainly, this provision may operate so as to hinder rather than advance the operation of the Act in relation to the granting and refusal of entry permits, by constricting the flow of valid applications for consideration in the light of the relevant prescribed criteria.
No doubt delegated legislation is not "unreasonable" within the meaning of the authorities merely because it does not contain qualifications (for example, as to extension of time in special cases even after expiry of the prescribed period) which a court may think ought to be there: Widgee Shire Council v Bonney (1907) 4 CLR 977 at 982-983; McCarthy v Madden (1914) 33 NZLR 1251 at 1268; Attorney-General (NSW) v Quin (1990) 64 ALJR 327 at 341-342 per Brennan J. The question is whether the delegated legislation is so oppressive or capricious that no reasonable mind can justify it: Brunswick Corporation v Stewart (supra) at 97 per Starke J.
It is sufficient for the purposes of this appeal to state that if we had not been able to dispose of it on other issues, an arguable question would have arisen as to whether the appellant's submissions on this issue should have been accepted. With effect from 31 May 1990, a revised para. 42 (1A) (a) was inserted in the Regulations: Statutory Rules No. 109 of 1990, r. 5. This has the effect that an application may be lodged within seven working days but only on application made within two working days of the arrest of the applicant. The appellant submitted that this was a futile or trivial amelioration given the severe consequences that would still flow from a failure to act, from ignorance of the rigour of the law or other special circumstances, within the initial two day period. The present litigation is concerned only with the sub-regulation in its initial form and we say nothing on this further point.
The appeal will be dismissed with costs.

[1990] FCA 460

31 AUGUST 1990