Esteron, T. v Minister for Immigration & Ethnic Affairs
[1995] FCA 316
•19 MAY 1995
CATCHWORDS
IMMIGRATION LAW - Migration Regulations 1989, reg.131A(1)(d) - Immigration Review Tribunal required to consider whether applicant satisfied the relevant criteria continuously until the date of the Tribunal's determination.
WORDS AND PHRASES - statutory construction - Migration Regulations 1989, reg.131A(1)(d) -"until the Minister decides" -means until a final decision is made at the conclusion of the administrative decision-making process.
Migration Regulations 1989, reg.131A(1)(d)
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167;
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
Gee v Director-General of Social Services (1981) 58 FLR 347.
Jebb v Repatriation Commission (1988) 80 ALR 329.
Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87.
TEODOSIA ESTERON v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NG 211 of 1994
Sackville J.
19 May, 1995
Sydney.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 211 of 1994
GENERAL DIVISION
BETWEEN:
TEODOSIA ESTERON
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 19 MAY, 1995
THE COURT ORDERS THAT:
The decision of the Immigration Review Tribunal made on 18 March 1994 is affirmed;
The applicant pay the respondent's costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 211 of 1994
GENERAL DIVISION )
BETWEEN:
TEODOSIA ESTERON
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 19 MAY, 1995
REASONS FOR JUDGMENT
The Proceedings
This is an "appeal" on a question of law under s.138 of the Migration Act 1958 ("the Act"), from a decision of the Immigration Review Tribunal given on 18 March 1994. The Tribunal affirmed a decision of the Minister's delegate, made on 10 December 1992, to refuse Mr Esmeraldo Esteron a "December 1989 (temporary) entry permit" under the Migration Regulations 1989 ("the Regulations"), reg. 131A.
Mr Esteron's application for a temporary permit under the concessional arrangements embodied in reg.131A was supported by his mother, Ms Teodosia Esteron, as "nominator". Ms Esteron, who is an Australian citizen, is the applicant in the present proceedings and has standing to institute the appeal because she was the applicant for review before the Tribunal: see s.138(2)
of the Act. On an appeal under s.138 the Court may make such order as it thinks appropriate because of its decision: s.138(4). In particular, the Court may affirm or set aside the decision or remit the matter to the Tribunal, to be decided again with or without the taking of further evidence: s.138(5). The references in this judgment to s.138, and to other sections, are to the Act as it stood prior to amendments effected by the Migration Reform Act 1992 (which took effect, insofar as relevant, on 1 September 1994). However, there was no issue between the parties that the legislation in its earlier form applied to these proceedings.
The appeal raises a narrow point of construction. Regulation 131A(1)(d) requires an applicant for a December 1989 (temporary) entry permit to satisfy certain requirements
"on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit"
The issue is whether, on an application to the Tribunal to review the refusal by the Minister's delegate to grant a December 1989 (temporary) entry permit, the applicant must satisfy the requirements specified in reg.131A(1)(d) continuously until the date of the Tribunal's decision. The applicant in the present proceedings contends that the Tribunal should consider whether the requirements have been continuously satisfied until the date of the delegate's decision, and should ignore any lack of compliance thereafter. The Minister for Immigration and Ethnic Affairs, who is the respondent to these proceedings, argues that the Tribunal should assess the applicant's circumstances until the date of the Tribunal's own decision. It is the respondent's submission that the applicant must show that the requirements have been continuously satisfied for the whole of that period.
Mr Esteron's Application
Mr Esteron was born in the Philippines on 6 August 1942 and is a citizen of that country. He entered Australia on 8 February 1989 and was granted a temporary entry permit on arrival, valid until 8 March 1989. No subsequent entry permit has been granted to him. On 14 October 1992 Mr Esteron applied for a temporary entry permit under reg.131A. As will be explained, the application form was also appropriate for a permanent entry permit under reg.142C. Mr Esteron claimed that he was a "special need relative", in relation to his mother, within the meaning of reg.131A(1)(d)(iv). Alternatively, Mr Esteron claimed that there were other compassionate grounds for the grant of an entry permit, within the meaning of reg.131A(1)(d)(v).
Pursuant to reg.34A of the Regulations, an applicant for an entry permit, subject to any contrary provision, must satisfy the criteria in relation to the relevant class of entry permit "at the time of the application and as applicable at that time". Regulation 131A prescribes a number of criteria in relation to a December 1989 (temporary) entry permit. Insofar as relevant, the criteria are the following:
"(a)the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;
(b)the applicant was in Australia on, and has not left Australia since, 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:
(iv)the applicant is:
...
(C)a special need relative;
...
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;
...
(g)the applicant has been nominated by the relevant related person referred to in paragraph (d)...".
A "special need relative" is defined in reg.2, to mean a relative who is "willing and able to give substantial continuing assistance to [an Australian citizen or permanent resident] where:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit;
(b)the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident, being a relative who is an
Australian citizen or an Australian permanent resident; or
(ii)welfare, hospital, nursing or community services in Australia."
Mr Esteron's claim to be a "special need relative" was based on his mother's need for medication and nursing care arising from her advanced age and illness. Mr Esteron's claim that there were compassionate grounds for an entry permit relied on his mother's need for continuous assistance and adult companionship.
Permanent Entry Permit
Although the case raises an issue of construction concerning the criteria for a December 1989 (temporary) entry permit, it is relevant to note that a person who succeeds in obtaining such a permit is, in effect, entitled to a permanent entry permit under reg.42 and reg.142C. Regulation 42 provides that, subject to certain limited exceptions, a person is entitled to be granted an entry permit if he or she satisfies the prescribed criteria in relation to that entry permit. Regulation 142C stipulates that, in relation to a December 1989 (permanent) entry permit, the relevant criterion is simply that the applicant 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. Since there are no additional public interest or health criteria to be satisfied by an applicant for a permanent December 1989 entry permit, (see Schedule 3 of the Regulations, Items 34A, 59A), the holder of a temporary entry permit is effectively entitled to a permanent entry permit. Indeed, as appeared from the original application completed by Mr Esteron in the present case, the same form is used for an application for a December 1989 (temporary) entry permit and for a December 1989 (permanent) entry permit.
The Decision
On 10 December 1992, the Minister's delegate refused Mr Esteron's application, which was treated as being for a December 1989 (temporary) entry permit. The delegate found that the requirements specified in reg.131A(1)(a),(b) and (c) were satisfied. However, the delegate rejected Mr Esteron's claim to be a "special need relative", because the kind of assistance he provided to his mother was not "substantial continuing assistance". In any event, the delegate found that Ms Esteron could obtain assistance from other relatives living in Australia. The delegate also concluded that the alternative compassionate ground was not made out, since other relatives could provide Ms Esteron with assistance to lessen any claimed hardship.
On 7 January 1993, Ms Esteron applied to the Immigration Review Tribunal for review of the delegate's decision: see Migration (Review) Regulations 1989, reg.21(4). On 18 March 1994 the Tribunal, after hearing evidence from both Mr Esteron and Ms Esteron, affirmed the delegate's decision. In reaching its findings, the Tribunal clearly considered whether Mr Esteron had continuously satisfied the criteria of a "special need relative" for the whole of the period until the Tribunal's own determination. In particular, the Tribunal placed considerable weight on the fact (as it found) that Ms Esteron had spent a total of five and half months outside Australia, over the period March 1993 to March 1994. The Tribunal also specifically found that Ms Esteron had not been seriously disabled continuously for the whole of the period from October 1990 until the date of the Tribunal's determination. It was not disputed by Mr Roberts, who appeared for the Minister, that if the applicant's construction of reg.131A(1) were correct, the Tribunal had erred in law.
The Arguments
Mr Williams, for the applicant, argued that the opening words of reg.131A(1)(d) refer to a period which terminates on the date when the Minister or his delegate, as distinct from the Tribunal, decides to grant, or not to grant, the entry permit. Mr Williams relied principally on three arguments:
lRegulation 131A(1)(d) expressly refers to the period "until the Minister decides to grant, or not to grant, the entry permit". Had the draftsperson intended that matters occurring after the decision by the Minister's delegate should be taken into account, the paragraph would have used a different formula, such as "continuously until the determination of the entry permit application".
lRegulation 131A contains a comprehensive set, or code, of dates at which the various criteria must be satisfied. Although the reference to the date of the Minister's decision might be regarded as somewhat arbitrary, it is no more arbitrary than the other dates referred to in reg.131A.
lIt would be anomalous if the criteria to be satisfied by an applicant were to change, merely because of an erroneous decision by the Minister's delegate. The period during which the criteria must be continuously satisfied should not be capable of extension by a wrongful refusal of the application.
Mr Williams contended that, since the Tribunal had erroneously taken into account events occurring after the delegate's decision, the appropriate course was to set aside the Tribunal's decision and to remit the matter for further consideration.
Mr Roberts argued that the language of reg.131A(1)(d) is intended to refer to the period ending with an administrative decision which finally determines the application. Mr Roberts pointed out that the Minister is not required to exercise personally the power to grant or not grant a temporary entry permit under reg.131A. That power could be (and was in this case) delegated by the Minister under s.176 of the Act, as it then stood. A function or power which was delegated, when performed by the delegate, was deemed, for the purposes of the Act, to have been performed or exercised by the Minister: Acts Interpretation Act 1901, s.34AB(c).
Under s.117 of the Act, which is within Part 3, a "review authority", which includes the Tribunal, has "determinative powers" in relation to the decision under review. Section 4(12) of the Act states that an application is finally determined when the review process under Part 3 is completed, or the time for review has lapsed. Section 118(5) of the Act provides that, where the review authority varies the decision or substitutes a new decision, the decision as varied or substituted
"shall (except for the purpose of applications to the Tribunal for review or of appeals from decisions of the Tribunal) be taken to be a decision of the Minister".
Mr Roberts submitted that this statutory scheme contemplates that a decision by the Tribunal under Part 3 of the Act, which varies or is in substitution for the original decision, is, for the purposes of the Act, a decision of the Minister.
Mr Roberts accordingly contended that, in order for the Tribunal to grant a temporary entry permit under reg.131A, it has to be satisfied that the criteria specified in sub-paragraphs (iv) or (v) have been satisfied continuously from 15 October 1990 until the date of the Tribunal's decision. It is only when the Tribunal resolves the matter that the Minister is deemed to have decided to grant the entry permit.
The Construction Question
As often occurs with questions arising out of the Migration Regulations in their various manifestations, the issue in the present case, although narrow, is by no means clear cut.
It is fair to say that the language employed in reg.131A(1)(d) is ambiguous. On its face it could refer to the decision of the Minister or his or her delegate, prior to any process of review undertaken by the Tribunal. The reference to the Minister deciding "to grant, or not to grant, the entry permit" is apt to refer to the decision of the Minister or his or her delegate, before any review process is commenced. Equally, however, the language of reg. 131A(1) is capable of referring to decisions reached at the culmination of the review process.
It is clear that both the Act and the Regulations contemplate that the Minister will not make most decisions personally. The Act also clearly contemplates, in s.118(5), that certain decisions of the Tribunal will be taken to be decisions of the Minister. This suggests, as Mr Roberts submitted, that the language of reg.131A(1) is not intended to be read in isolation from its statutory context. I do not think it correct to suggest (as did Mr Williams) that, had the intention been to require the eligibility criteria in reg.131A(1)(d) to be satisfied continuously until determination by the Tribunal, different language inevitably would have been used. Indeed, the formulation suggested by Mr Williams as the obvious alternative is itself not free from ambiguity. (Does "determination" refer to the initial decision by the Minister's delegate, or to the final determination by the Tribunal?)
In my view, the key to the construction of the opening words of reg.131A(1)(d) is that the regulation must be construed within a statutory context that specifically contemplates a process of review on the merits by the Tribunal. Under s.118(2) of the Act (equivalent to the first limb of s.43(1) of the Administrative Appeals Tribunal Act 1975), the Tribunal is empowered to exercise all the powers and discretions conferred by the Act on the Minister. Section 118(4) (equivalent to the second limb of s.43(1)) authorises the Tribunal to affirm or vary the decision, or set it aside and substitute a new decision. The terms of s.118(5) have already been referred to. The task of the Tribunal is not merely to ascertain whether the Minister's delegate had erred (as Mr Williams' submissions appeared to assume), when refusing to grant the entry permit. The Tribunal's role is to make "the correct or preferable" decision and to do so on the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (FCA/FC), at 419, per Bowen C.J. and Deane J. In exercising these powers, the Tribunal discharges an administrative function: Drake, at 419.
The position was put this way, in relation to the Administrative Appeals Tribunal, by Hill J. in Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87, at 97:
"Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the Tribunal, but by the decision-maker himself. But even where the Tribunal substitutes its own decision for that of the original decision-maker, the Tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s.43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v Commissioner of Taxation (Cth) (1935) 53 CLR 206 at 214, referring to the Taxation Boards of Review, but equally applicable to the Tribunal, the Tribunal is: 'only another executive body in an administrative hierarchy'."
The nature of the administrative process was described by Davies J. in Jebb v Repatriation Commission (1988) 80 ALR 329, at 333:
"the general approach of the Administrative Appeals Tribunal has been to regard the administrative decision-making process as a continuum and to look upon the Tribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the Tribunal's decision."
See also Commonwealth v Ford (1986) 65 ALR 323 (FCA/Wilcox J.), at 328-329.
It seems to me that reg.131A(1)(d), when referring to "the Minister [deciding] to grant, or not to grant, the entry permit", is intended to refer to a final decision at the conclusion of the "continuum" constituting the administrative decision-making process. I do not think the language is intended to be confined only to one part of the process, namely, the initial decision made by the Minister or the delegate.
This view is supported by the terms of s.118(5) of the Act. The end result of the administrative "merits" reassessment, if the applicant is to receive an entry permit, is a decision that is "taken to be a decision of the Minister". It must be remembered that, where the Minister's delegate refuses to grant an entry permit, the applicant can only succeed if the Tribunal is persuaded to vary the delegate's decision or to substitute its own decision for that of the delegate, thereby attracting s.118(5) of the Act. This is because the Tribunal's jurisdiction is limited to reviewing a decision to refuse a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit: see s.116 of the Act; Migration (Review) Regulations, reg.9(1),(2) and definition of "IRT reviewable decision" in reg.2(1).
The view I have expressed receives support from language used elsewhere in reg.131A(1) itself. Under reg.131A(1)(e), if the Minister forms the opinion that the applicant should provide an assurance of support, an assurance satisfactory to the Minister must be given. The reference to the Minister's opinion in reg.131A(1)(e) is clearly intended to include the opinion formed by the Tribunal on an application for review of the Minister's decision. This suggests that the references to "the Minister" in reg. 131A(1) are not intended to be confined to the Minister or the delegate, as opposed to the Tribunal exercising its power to review the Minister's decision on the merits.
It is true, as Mr Roberts recognised in the course of his submissions, that s.118(5) of the Act does not specify that all determinations made by the Tribunal are taken to be decisions of the Minister. If the Tribunal simply affirms the decision of the Minister, s.118(5) does not apply. Accordingly, the "original decision [of the Minister remains] intact": Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167 (AAT/Brennan J.), at 175; see also Gee v Director-General of Social Services (1981) 58 FLR 347 (AAT/Full Tribunal), at 354-355.
However, I do not think that this alters the position. As I have said earlier, if an applicant whose application for an entry permit has been refused by the Minister is to succeed before the Tribunal, it will be necessary for the Tribunal to vary the Minister's decision or substitute its own determination. Thus, if the applicant is ultimately to succeed, a decision will have to be made that is "taken to be a decision of the Minister": s.118(5). In any event, the administrative decision-making process retains its character as a continuum and the Tribunal continues to exercise all the powers and discretions conferred by the Act upon the Minister. Accordingly, even where the Tribunal affirms the Minister's refusal to grant an entry permit, the decision-making process is not complete until the Tribunal's decision is made. Of course, the Tribunal's affirmation of the Minister's decision is subject to an appeal on a question of law under s.138 of the Act in the same way as a determination varying the Minister's decision or substituting a new decision. This is because s.138(1) provides for an appeal on a question of law "from any decision of the Tribunal made on a review under this Part".
I find nothing curious in this construction of reg.131A(1)(d). If an applicant's claim for a temporary entry permit has been refused, but is the subject of an application for review by the Tribunal, I do not think it anomalous that the Regulations should require continuity of the matters referred to in reg.131A(1)(d) until the date the Tribunal finally determines the application. Of course, it is a matter for those drafting the regulations to determine the period during which an applicant must demonstrate, for example, that he or she is a "special need relative". However, it is readily understandable that the Regulations, if they are to adopt an ambulatory cut off date for a specified state of affairs, should choose a date that marks the termination of the decision-making process. This is especially so where a consequence of the grant of a temporary permit is, in effect, to establish entitlement to a permanent entry permit under reg.142C. Because the review process requires a fresh determination on the merits, this construction of reg.131A(1)(a) does not imply that an applicant is simply penalised for a wrong initial decision. The construction is consistent with the general approach to administrative decision-making, which requires circumstances occurring after the date of the initial determination, but prior to final determination on a merits review, to be taken into account.
I should record two other matters. First, I think there is no substance in Mr Williams' contention that the construction of reg.131A(1)(d) should be influenced by the comprehensive code of dates contained in the regulation. Apart from reg.131A(1)(d), all other regulations are identified by calendar dates. The construction of the language used in reg.131A(1)(d) must depend on other facts.
Secondly, at one stage in the argument, I thought that there might be some significance in the use of the words "decides to grant, or not to grant, the entry permit" in reg.131A(1)(d). On one view the phrase "or not to grant" is a curious one to employ in relation to a criterion that must be satisfied before an applicant is entitled to an entry permit. But, if it is curious, this is equally the case whichever of the two competing constructions of s.131A(1)(d) is adopted.
Conclusion
In my view, no error of law has been shown in the approach taken by the Tribunal in this matter. In particular, on its correct construction, reg.131A(1)(d) required the Tribunal to consider whether Mr Esteron had satisfied at least one of the relevant criteria continuously until the date of the Tribunal's determination to grant, or not to grant, the entry permit. Accordingly, the decision of the Tribunal is affirmed. The applicant must pay the respondent's costs.
I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated: 19 May, 1995
Heard:12 May, 1995
Place: Sydney
Decision:19 May, 1995
Appearances: Mr N. Williams, instructed by Ray Turner, Solicitor, appeared for the applicant.
Mr P. Roberts, instructed by the Australian Government Solicitor, appeared for the respondent.
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