Goundar, K. v Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 791

KANIAPPA GOUNDAR v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. NG875 of 1993
FED No. 791/94
Number of pages - 8
Migration - Interpretation
(1994) 35 ALD 383 (extract)
(1994) 54 FCR 300

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT J

CATCHWORDS

Migration - Interpretation - whether s. 6A(1)(e) involved separate "humanitarian" and "compassionate" grounds - whether the reference in reg. 173A(2)(a) to "humanitarian grounds" is a reference to s. 6A(1)(e) or only to an assumed ground within it or to the ground stated in s. 47(1)(g) - context of departmental opinion about the effect of s. 6A(1)(e) - principle of beneficial construction of provision for review and narrow construction of exclusion as being a provision affecting a procedural safeguard of an individual right.

Migration Act 1958, ss. 6A(1)(e) and 47(1)(g)
Migration Legislation Amendment Act 1989, s. 6(4)
Migration Regulations, reg. 173A

Wentworth v. New South Wales Bar Association (1992) 176 CLR 239
Cole v. Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541
Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 31 FCR 364
Annetts v. McCann (1990) 170 CLR 596
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480
Dahlan v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989)
Damouni v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 425

HEARING

SYDNEY, 30 March 1994
#DATE 31:10:1994

Counsel for the Applicant: Mr M.B. Smith

Solicitors for the Applicant: Parish Patience

Counsel for the Respondent: Mr J.S. Hilton S.C.

with Mr G.M. Elliott

Solicitor for the Respondent: Australian Government Solicitor

ORDER

1. The applicant bring in on a date to be fixed short minutes of orders appropriate to reflect the reasons of the Court.

2. The respondent pay the applicant's costs.

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

JUDGE1

BURCHETT J Among the many sharp changes in direction of migration law in Australia, was the coming into force after 18 December 1989 of amendments made by Part 2 of the Migration Legislation Amendment Act 1989 ("the Amendment Act"). One of the effects of the new legislation was the repeal of s. 6A. Subsection (1) of that section had provided:

"An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - . . .

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

. . .

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. The Amendment Act substituted for these provisions of s. 6A new provisions contained in s. 11ZD, which was then renumbered as s. 47, subs. (1) of which relevantly provided:
   

"A permanent entry permit shall not be granted to a non-citizen after entry into Australia unless at least one of the following paragraphs applies to the non-citizen; . . .

(d) he or she is the holder of a valid temporary entry permit and the Minister has determined, in writing, that the non-citizen has the status of refugee within the meaning of:

(i) the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951; or

(ii) the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967; . . .

(f) he or she is the holder of a valid temporary entry permit and there are strong compassionate grounds for the grant of a permanent entry permit to him or her;

(g) he or she is the holder of a valid temporary entry permit and there are strong humanitarian grounds for the grant of a permanent entry permit to him or her."

But it was not intended that the changed provisions should apply to persons who had already made applications for visas or entry permits before their commencement. Section 6(4) of the Amendment Act provided:

"In spite of the repeal effected by subsection (1) (i.e. the repeal which included s. 6A), the provisions of the Principal Act (i.e. the Migration Act 1958) relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement."

1. Although s. 6(4) ensured that the provisions of the Act relating to the applications referred to should continue to apply to them, it appears that a doubt was raised about the administrative procedures in respect of the review of decisions made upon such applications, since those procedures had previously been rooted in practice rather than in specific statutory provisions. Not immediately, but after some time, a problem seems to have been perceived in this regard. The solution adopted was to make a regulation, and it is the construction of this regulation, reg. 173A, which poses the problem in the present case.

2. Before I turn to the terms of reg. 173A, it is convenient to note two further sections of the Act as amended by the Amendment Act, s. 61, renumbered as s. 115, and s. 64, renumbered as s. 118. Section 115 empowered the making of regulations providing for "decisions of the Minister to be reviewed" (s. 115(1)(a)). Section 118(3) provided:
   

"In spite of anything else in this Act, a review authority shall not, by varying a decision or setting a decision aside and substituting a new decision, purport to grant an entry permit on humanitarian grounds."

With this may be compared the provision in s. 64B, renumbered as s. 120, by subs. (1)(d) of which "a decision by the Minister that a person does not have the status of refugee" within a meaning defined in the same terms as those of s. 47(1)(d) could not "be prescribed by regulations made under s. 115". Neither party contended s. 118 or s. 120 was relevant to the case of a person whose application fell within the terms of reg. 173A.

1. Regulation 173A was inserted into the Migration Regulations, by Statutory Rule number 109 of 1990, on 29 May 1990. As amended, in respects it is unnecessary to detail, later in 1990 and in 1991, it took by 20 May 1992 and 19 October 1992, so far as is relevant to the present case, the following form:
   

"173A.(1) Where a person whose application under the provisions of the Act as in force before 19 December 1989 for the grant of a visa or entry permit has been refused after 18 September 1989:

(a) did not lodge under regulation 29B, 29BA, 29BB or 29BC of the Migration Regulations as in force before 19 December 1989 a second application for the visa or entry permit; and

(b) is not entitled to apply under the provisions of the Migration (Review) Regulations for review of the decision;

the person may make one application to the Minister, in a form approved by the Minister, to reconsider the decision.

(2) Subregulation (1) does not apply if the application was made:

(a) on humanitarian grounds; or

(b) on the ground that the applicant was entitled to the status of a refugee as defined in paragraph 47(1)(d) of the Act; or

(c) on the ground that the applicant was a student."

1. It is the meaning and effect of the exclusion, by reg. 173A(2)(a), of a case where the application was made "on humanitarian grounds", that has come up for decision. The present applicant had made, on 18 December 1989, an application which was considered under the terms of s. 6A(1)(e), and rejected, on 5 May 1992. That application had been made by the completion and lodgment of a departmental form headed "Application for Grant of Resident Status in Australia". This official form contained provision, in its section 1, for the statement of the grounds of the application by answers to a series of questions, including:
   

"1.8 Are you applying on strong compassionate grounds? If you have answered 'YES', please complete PART G, in addition to this form.

1.9 Are you applying on strong humanitarian grounds? If you have answered 'YES' please complete PART I, in addition to this form."

The applicant had answered 1.8 "NO", and 1.9 "YES". However, he had completed Part G, and as I have said, his application was in fact treated as an application under s. 6A(1)(e); it was not treated as limited to part only of that ground. I think this was plainly correct, and that on a fair reading of the application as a whole, it did rely on the full ground stated in s. 6A(1)(e), as that section stood at the date of the application. The form was enclosed with a letter from the applicant's solicitors to the Department, the first two sentences of which were:

"We act for Mr Goundar and lodge on his behalf an Application for Permanent Residence based on humanitarian and compassionate grounds. The application is thus lodged under Section 6A(1)(e) of the Migration Act."

1. In any case, the decision-maker was bound to treat the application as one raising the relevant ground, namely, that stated in s. 6A(1)(e): Mohammed Motahir Ali v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Jenkinson, Lee and Beazley JJ, 2 September 1994). Upon its true construction, s. 6A(1)(e) provided, as was accepted by both parties before me, a single ground capable of satisfaction through either of the two overlapping concepts expressed by the words "compassionate" and "humanitarian": Dahlan v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989); Damouni v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 425 at 428; Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480.

2. But it is clear from the terms of the departmental form, to which I have referred, that, until these decisions became known, understood, and accepted, the Department took the view that s. 6A(1)(e) embraced two discrete grounds. That view seems also to have received brief legislative recognition, during the time that s. 47(1)(f) and (g) were law. Some light is thrown on what was thought to be involved in the distinction, by the terms of two sections of the "Integrated Departmental Instructions Manual", headed respectively "Strong compassionate grounds" and "Strong humanitarian grounds". The former of these documents contains the statement:
   

"In general, compassionate circumstances relate to the misfortunes and sufferings which people experience in their personal lives brought about by unusual or distressing circumstances which relate to them as individuals. Compassionate circumstances are to be distinguished from humanitarian circumstances. Broadly, humanitarian circumstances relate to individuals being disadvantaged as a result of membership of some group or class of people, which is being treated differently and adversely in relation to the rest of the population by the governments of their countries of origin."

The copy of this document in evidence is endorsed as issued in the year 1988. I do not know whether a second edition was issued, but the other document "Strong humanitarian grounds", also issued in 1988, was reproduced in a second edition in 1989, including the statements:

"1.1 This topic describes the requirements to be met by people applying for resident status (i.e. to remain permanently in Australia) on strong humanitarian grounds. 1.2 Distinction between Humanitarian Grounds and Compassionate Grounds: There is a distinction between applications based on humanitarian grounds and those involving factors of a compassionate nature. ...

1.3 Broadly, strong compassionate grounds relate to severe misfortune and suffering which individuals experience in their personal lives as a result of unusual or distressing circumstances personal to them. Humanitarian grounds, on the other hand, relate to an individual who, because of membership of a particular group/class or because of beliefs held, has been or would be singled out for severely disadvantageous treatment by the state in the applicant's country of origin or last permanent residence."

1. The Minister having refused on 19 October 1992 to entertain the applicant's application under reg. 173A, the present proceeding was brought for an order requiring him to determine the matter according to law. There was a further and independent complaint, but this has already been rectified, and no relief is now sought in that respect. The core question in the case is whether the exclusion of an application that was made "on humanitarian grounds" operates here. That in turn depends upon what is meant by an application "on humanitarian grounds".

2. The difficulty arises from the fact that there was no such thing as an application "on humanitarian grounds" under the contemporary migration law. There was, for cases like the present, where the application had been made prior to 19 December 1989, the ground provided by the former s. 6A(1)(e) - which could shortly be referred to as "strong compassionate or humanitarian grounds". The Minister says that this is what the regulation is referring to, by a kind of inaccurate shorthand. There was also on the statute book, but it did not come into effect until 19 December 1989, a new s. 47(1)(g), set out above, referring to "strong humanitarian grounds".

3. A number of factors point away from the view advanced on behalf of the Minister, quite apart from the inappropriateness of the language. The departmental form drawn up for such cases, of which the form used in the present matter is an example, plainly shows that the Department itself conceived of two separate grounds, one of which could fairly have been referred to by the label "humanitarian". The climate of official opinion at the time is part of the context in which the regulation was made. The Instructions Manual shows that an official rationale had been developed, according to which humanitarian circumstances related to the adverse treatment of individuals, disadvantaged as a result of their group or class connections, or because of their beliefs, by the governments of their countries of origin. This approach echoes concepts which lie at the heart of the condition of a refugee. In reg. 173A(2), para. (a) excluding an application made "on humanitarian grounds", is immediately followed by para. (b) excluding an application made "on the ground that the applicant was entitled to the status of a refugee". If it was thought that the case of an alleged refugee ought to be excluded, it is very likely that the case of a claimant "on humanitarian grounds", as explained in the Instructions Manual, would have been seen in precisely the same light. Consistency would demand that the exclusion of the one should be accompanied by the exclusion of the other.

4. To that proposition, the Minister's counsel responds that, at the date when reg. 173A was brought into existence, 29 May 1990, the incorrectness of the view expressed in the Instructions Manual had been exposed by the decision in Dahlan (supra). I do not find this very convincing. The interval is quite short between the decision and the making of the regulation, bearing in mind that it would take time for an unreported decision to become known and, at the other end of the interval, the regulation must have been drafted some time before its promulgation. In any case, there is nothing to show that the view of a single judge expressed in Dahlan was officially accepted. The same case provides an example of how long it takes for the demonstration of an error in official thinking to achieve recognition. Hill J cites my judgment in Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 516, where I drew attention to the obvious proposition that s. 6A(1)(e)
   

"does not require an applicant to suffer uniquely. There may be 'strong compassionate or humanitarian grounds for the grant of an entry permit' to an applicant who happens to be able to apply, because already outside his country, though thousands of his compatriots are desperately situated, but cannot even apply. The plight of German Jews in 1938 provides a ready illustration."

This passage was adopted by Wilcox J in Pesava v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, 8 May 1989) and by Hill J in Dahlan. The same view was taken by French J in Damouni. The judgment in Sinnathamby was published long before the entries in the Instructions Manual to which I have referred, yet it will have been noticed that the second of those entries specifically requires, for the establishment of strong humanitarian grounds, that an individual "has been or would be singled out for severely disadvantageous treatment by the state in the applicant's country of origin or last permanent residence".

1. In any case, contemporaneously with the change to the new provisions to operate after 18 December 1989, there was introduced into the statute the very dichotomy that French J and Hill J had said could not be satisfactorily maintained. This was in s. 47, which remained the law until its repeal by s. 12 of the Migration Amendment Act 1991. Accordingly, it is not at all unlikely that those responsible for reg. 173A had continued to see s. 6A(1)(e) as embracing two grounds. Indeed, there is internal evidence that the author of the regulation did actually advert to s. 47. For he referred to it, inappropriately, in reg. 173A(2)(b). Since s. 47 was not in force prior to 19 December 1989, no application falling within the terms of reg. 173A could have been made as an application "on the ground that the applicant was entitled to the status of a refugee as defined in paragraph 47(1)(d) of the Act"; any application of the kind specified must have related to the definition of a refugee as understood before the enactment of s. 47. As it happens, the definition in s. 6A(1)(c) was the same; nevertheless, the paragraph of the regulation was both confusing and inappropriate in its reference to the source of that definition. But para. (b) does show that the draftsman had regard to s. 47, and also to a provision closely related to the Department's understanding of the separate "humanitarian ground" contained in s. 47.

2. If the author of reg. 173A did have regard to s. 47, and to the view implicit in the departmental form of application that there was a separate humanitarian ground included in the old s. 6A(1)(e), a desire for consistency between the provisions for review under the new scheme, and under the interim arrangements, may have required the exclusion from reg. 173A of an application made "on humanitarian grounds". For s. 118(3) excluded from the power to grant an entry permit under the new review provisions a case where the ground was "humanitarian", a provision which was there perfectly easy to interpret as a reference to s. 47(1)(g). There was no exclusion of a case where the ground was "compassionate" within s. 47(1)(f). In the circumstances, the use in reg. 173A of the very expression employed by the legislature in s. 118(3) seems significant. Conformably with this approach, the exclusion in reg. 173A(2)(b) also matches the terms of s. 120(1)(d) of the Act in respect of review, under the new provisions, of a decision that a person does not have the status of refugee.

1. I was referred to reg. 131A, which was inserted in the Regulations over six months after reg. 173A, on 10 December 1990. I do not think reg. 131A casts any light on the question I have to decide, but it is interesting to note that the ground corresponding, in some degree, to the previous s. 6A(1)(e) is there referred to as a "compassionate ground", and not as an "humanitarian" ground. If an abbreviated reference were to be made to s. 6A(1)(e), that would be a more natural way of making it, since the word "compassionate" comes before the word "humanitarian" in the full statement of the ground.

2. The first subparagraph of reg. 173A confers a right to make an application for reconsideration. In doing so, the regulation is consistent with the plain legislative intent evinced by s. 6(4) of the Amendment Act. Indeed, it may be arguable (although it was not argued in this case, and I express no opinion on the point) that s. 6(4) should itself be construed as extending to the reconsideration, as well as the consideration, of the applications to which it refers. But on the assumption which grounded the regulation and the arguments before me, that specific provision was required, subreg. (1) embodies that provision. Subregulation (2) is then a provision excluding certain cases from the general right of review conferred by subreg. (1). Upon ordinary principles, such an exclusion ought to be construed, if ambiguous, narrowly rather than broadly. In Cole v. Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541 at 543, Kirby P said:
   

"Thirdly, and most importantly, the provision for appeals is a beneficial one, conferring on employees of the Public Service entitlements to the review of decisions which were not enjoyed by Crown servants by the prerogative or at common law and which are not generally enjoyed ... . The entitlement to appeal conferred by s 20 (of the Government and Related Employees Appeal Tribunal Act 1980) is a beneficial entitlement of employment. It should not be excluded or confined by the exceptions provided in s 21, except to the extent that those exceptions are clear. Any doubt about the scope of s 21(1)(e) should be resolved in favour of the enhancement of the right of appeal and against its diminution by the operation of the exclusion."

This seems to me to be a specific example of the broader principle stated by Deane, Dawson, Toohey and Gaudron JJ in Wentworth v. New South Wales Bar Association (1992) 176 CLR 239 at 252:

"There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication. They include important common law rights, procedural and other safeguards of individual rights and freedoms and the jurisdiction of superior courts."

See also Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 31 FCR 364 at 372-373.

1. In terms of the rule laid down in Wentworth v. New South Wales Bar Association, what is here involved is a legislative provision (made by regulation) in relation to the procedural safeguard of very important individual rights, conferred upon persons in the position of the applicant by the right of review. It would be contrary to both the statements of principle to which I have referred to construe the ambiguous and inaccurate language of reg. 173A(2)(a) in the wide sense required by the Minister's submission. The paragraph should rather be given the narrow scope actually expressed by its words.

2. It is true that the narrow meaning makes the paragraph ineffective, because the assumption on which, according to that meaning, it was drawn - that there was a discrete ground within s. 6A(1)(e), re-enacted in s. 47(1)(g) - was simply wrong. But if, as I hold, the regulation was indeed drafted on this false assumption, there can be no warrant for giving it a wider meaning it was never intended to have, embracing so much of the full meaning of s. 6A(1)(e) as derives from the word "compassionate". Although the author of the regulation intended to exclude a ground mistakenly seen in s. 6A(1)(e), it is equally true that he intended not to exclude the other ground mistakenly seen as separately stated in s. 6A(1)(e). If the intention must therefore fail to some extent, it can be no answer to the construction I favour that it would make the provision ineffective. The other construction would make it effective to an extent and in a way never intended.

3. To put the matter slightly differently, the misconceptions of the maker of a regulation, or of a legislator, do not make law. Legislation that proceeds on the basis of a misconception may simply be ineffective. Cf. Annetts v. McCann (1990) 170 CLR 596 at 600; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; In re Lockwood, decd. Atherton v. Brooke (1958) 1 Ch 231.

4. For these reasons, I conclude that reg. 173A(2)(a) had no application to the present case. I reject the concept that it had application to so much of the case as could be regarded as falling within the meaning of the adjective "humanitarian", since it would be wrong in law to attempt to divide the ground provided by s. 6A(1)(e) in this way. As to what the ground does embrace, I refer to Damouni and Dahlan, and to my discussion of the principles involved in Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs (supra) at 489-490.

5. I order the applicant to bring in, on a date to be fixed, short minutes of orders appropriate to reflect the reasons of the Court. The respondent must pay the applicant's costs.