Hamsher v Swift - [1992] FCA 10

Re: FRANKLIN CLARENCE HAMSHER; NEIEL JOHN DRAGO; BEVERLY KATHERINE ELTON;
LAURENCE ETHEREDGE; ARTHUR JAMES HEMPEL; LILIAN PAGE KRAINOCK; MARGARET ANN
LIBASSI; SARAH ELIZABETH MARSHALL; ALLEN WESLEY WILLIAMS; CHERYL ELAINE
WILLIAMS; MARILYN COLENE WILLIAMS and LETITIA LIBASSI BY HER NEXT FRIEND
FRANKLIN CLARENCE HAMSHER
And: HARRIET SWIFT, ASTRID NORGARD AND MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. WA G106 of 1991
FED No. 10
Immigration - Parliament
(1992) 33 FCR 545

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Immigration - entry permit - non-citizens - transitional provisions - application for permanent entry permit prior to amendments to law - application refused - two year temporary entry permit granted - offer to consider permanent entry thereafter - amendment to laws - no appropriate entry category pursuant to amendments - whether applicants covered by transitional provisions of amending legislation - ministerial statement in Parliament - parliamentary privilege - estoppel - validity of regulations.

Parliament - privilege - freedom of speech - ministerial statement - pleaded and tendered without objection - applicability of privilege notwithstanding lack of objection - - right of member to waive privilege - use of statement to evidence decision - to support estoppel - excluded from consideration - Parliamentary Privileges Act 1987 s.16(3).

Administrative Decisions (Judicial Review) Act 1977 Judiciary Act 1903 s.39B

Extradition (Foreign States) Act 1966 s.16(1)(b)

Migration Act 1958 s.34, s.6, s.6A, s.47

Migration Legislation Amendment Act 1989

Parliamentary Privileges Act 1987 s.16

Migration (Criteria and General) Regulations

Hempel v Moore (1986) 70 ALR 601

Hempel v Moore (1987) 70 ALR 714

Hempel v Attorney-General (1987) 77 ALR 641

R. v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157

Plunkett v Cobbett (1804) 5 Esp 136; 170 ER 763

Chubb v Salomons (1852) 3 Car and K 75; 175 ER 469

Sankey v Whitlam (1978) 142 CLR 1

Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223

Formosa v Secretary Department of Social Security (1988) 81 ALR 687

Roman Corporation Ltd v Hudson's Bay Oil and Gas Co. Ltd (1971) 23 DLR (3d) 292

Royal Commission into Certain Crown Leaseholds (1956) St R Qd 225

Attorney General (NSW) v Quinn (1990) 170 CLR 1

Cross on Evidence Australian Edition para 27095

Campbell - Parliamentary Privilege in Australia (1965) p 33

HEARING

PERTH

#DATE 28:1:1992

Counsel for the Applicant: Mr I.S.Jones

Solicitors for the Applicant: Mossensons

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

It is hereby declared as against the third respondent that:

Each of the applicants is entitled by virtue of s.6(4) of the Migration Legislation Amendment Act 1989 to have his or her application for a permanent entry permit made on 17 April 1986 considered according to the provisions of the Migration Act 1958 relating to the granting of visas and entry permits as they stood immediately before 20 December 1989.

The application is otherwise dismissed.

There be liberty to any party to apply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamsher v Swift

Details

AGLC: Hamsher v Swift [1992] FCA 10
Case: [1992] FCA 10
Decision Date: 28 JANUARY 1992

CaseChat Overview and Summary

The applicants, Hamsher and others, sought a declaration that they were entitled to permanent entry permits under transitional provisions in the Migration Legislation Amendment Act 1989, following a refusal of their applications for permanent entry permits prior to legislative changes. The respondents, including the Minister for Immigration, multiculturalism and Status of Women, argued that the applicants were not covered by the transitional provisions and that their applications were correctly refused. The case was heard in the Federal Court of Australia, which had to determine the validity of the legislative amendments and the applicability of the transitional provisions.

The central legal issues revolved around the interpretation of the transitional provisions in the amending legislation, specifically whether they applied to the applicants' applications for permanent entry permits made before the legislative changes. The court had to consider the language of the transitional provisions, the legislative history, and the implications of parliamentary privilege and estoppel in relation to ministerial statements made in Parliament. The court also needed to determine whether the regulations implementing the amended legislation were valid.

The court held that the applicants were entitled to have their applications for permanent entry permits considered under the provisions of the Migration Act 1958 as they stood before the legislative amendments. The court found that the transitional provisions applied to the applicants' applications and that they were not correctly refused. The court also found that the regulations were valid and that the legislative changes did not affect the applicants' entitlement to a permanent entry permit. The court emphasised that the legislative intent was to provide a transitional mechanism for applicants in the applicants' position.

The court declared that each of the applicants was entitled to have their application for a permanent entry permit considered under the provisions of the Migration Act 1958 as they stood before 20 December 1989. The court dismissed the application in all other respects and ordered that the parties bear their own costs unless otherwise ordered. The court also granted leave for the parties to file and serve varied forms of the amendments to the statement of claim and defence within 14 days.

Orders

Orders of the court

It is hereby declared as against the third respondent that:

Each of the applicants is entitled by virtue of s.6(4) of the Migration Legislation Amendment Act 1989 to have his or her application for a permanent entry permit made on 17 April 1986 considered according to the provisions of the Migration Act 1958 relating to the granting of visas and entry permits as they stood immediately before 20 December 1989.

The application is otherwise dismissed.

There be liberty to any party to apply within 7 days to seek a variation of the form of relief proposed in paragraph 1 of this order.

The parties have leave to file and serve within 14 days varied forms of the amendments to the statement of claim and defence filed after the hearing excluding any reference to the statements allegedly made by the third respondent in the Senate on 6 October 1989.

Unless otherwise ordered upon the application of any party made within 7 days the parties to this application are to bear their own costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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