Lay, Max v Minister for Immigration & Ethnic Affairs
[1996] FCA 433
•31 May 1996
C A T C H W O R D S
IMMIGRATION LAW - December 1989 (temporary) entry permit - Whether tribunal erred in its application of the law - Reference to the correct provision would not have altered the outcome - Futile for Court to quash decision and remit for rehearing
Migration Act 1958 ss. 8, 14 (as in force prior to 1 September 1994)
Migration Amendment Act 1986 s.6AAA
Migration Amendment (No 2) Act 1988 s.5D
Migration Legislation Amendment Act 1989 ss. 5D, 6
Migration Regulations 1989 regs. 2, 34A, 131A
LAY AND OTHERS -v- MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and IMMIGRATION REVIEW TRIBUNAL
VG No 380 of 1994
Before: North J
Place: Melbourne
Date: 31 May 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VG No 380 of 1994
B E T W E E N :
MAX ALEXANDER LAY, SIMSON LAY,
PIETER LAY and LILY LAY
Applicants
AND
THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS
First Respondent
AND
IMMIGRATION REVIEW TRIBUNAL
(Constituted by PETER BRUCE)
Second Respondent
MINUTES OF ORDER
JUDGE: North J
PLACE: Melbourne
DATE: 31 May 1996
THE COURT ORDERS THAT:
The application be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VG No 380 of 1994
B E T W E E N :
MAX ALEXANDER LAY, SIMSON LAY,
PIETER LAY and LILY LAY
Applicants
AND
THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS
First Respondent
AND
IMMIGRATION REVIEW TRIBUNAL
(Constituted by PETER BRUCE)
Second Respondent
JUDGE: North J
PLACE: Melbourne
DATE: 31 May 1996
REASONS FOR JUDGMENT
This is an application to review the decision of the second respondent, the Immigration Review Tribunal (“the Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for
Immigration and Ethnic Affairs, to refuse the grant of a December 1989 (temporary) entry permit (“the entry permit”) to the second applicant.
The second applicant was born in Kupang, West Timor, on 19 March 1957. He arrived in Australia on 21 June 1980, and was given a temporary entry permit valid for 14 days. The purpose of his visit was to visit his brother, the first applicant, who had come to Australia in 1978 and was granted permanent residency in about August 1986. The fourth applicant came to Australia in August 1988, and married the second applicant in the same month. The second and fourth applicants had a son, the third applicant, who was born on 3 July 1989.
The second applicant applied for the entry permit on 29 October 1992, and based his application, in part, upon regulation 131A(1)(d)(v) of the Migration Regulations 1989, which relevantly provides:
“131A. (1) The following criteria are prescribed in relation to a December 1989 (temporary) entry permit:
......
(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:
......
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;”.
The application was refused on 25 May 1993. On 25 June 1993, he applied to the Tribunal for a review of the decision of the first respondent. The first applicant submitted to the Tribunal that there would be extreme hardship or irreparable prejudice within the terms of Regulation 131A(1)(d)(v) to him and the third applicant if the application for the entry permit was refused. The Tribunal found that there was no
evidence of relevant hardship or prejudice to the first applicant, and there is no challenge to this conclusion. The Tribunal also found that extreme hardship or irreparable prejudice to the third applicant was not relevant because the third applicant was not an “Australian permanent resident” and, consequently, did not come within the terms of regulation 131A(1)(d)(v).
Although numerous grounds were originally raised in the application for review, the applicants argued only one ground at the hearing before the Court. They submitted that the Tribunal had erred in relying on the wrong legislative provision to determine whether the third applicant was an Australian permanent resident, but they conceded that the terms of the legislation which should have been referred to were materially the same, so that reference to the correct legislation could not have altered the outcome.
THE TRIBUNAL’S REASONING
The Tribunal referred to the definition of “Australian permanent resident” in regulation 2(1) of the Migration Regulations 1989, which was as follows:
“a non-citizen other than an illegal entrant who, being usually resident in Australia, is:
(a) the holder of
a valid permanent entry permit; or
a return visa that is in force; or
(b) a person who:is likely to remain permanently in Australia; and
is a person, or is included in a class of persons, referred to in paragraph (e) of the definition of ‘exempt non-citizen’ in subsection 4(1) of the Act; or
(c)a person, other than a person to whom subparagraph (b)(ii) applies, whose continued presence in Australia is not subject to a limitation as to time imposed by law;”.
The Tribunal next referred to s.8 of the Migration Act 1958 as in force prior to 1 September 1994, which provided:
“8. A child who:
(a) was born in Australia; and
(b) was a non-citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.”
It is convenient for the purpose of later reference to set out here the terms of s.6AAA(a) of the Migration Amendment Act 1986 which was in force prior to s.8 of the Migration Act 1958. It provided:
“6AAA. Where a child who is born in Australia is a non-citizen at the time when the child is born (in this section referred to as the ‘relevant time’), then, for the purposes of this Act:-
(a) the child shall be deemed to enter Australia at the relevant time;”.
The Tribunal then referred to s.14 of the Migration Act 1958 as in force prior to 1 September 1994, which provided:
“14.(1) On entering Australia, a non-citizen becomes an illegal entrant unless:
(a) he or she is the holder of a valid entry permit; or
(b) the entry was authorised by section 17.”
It is also convenient for the purpose of later reference to set out here the terms of s.5D of the Migration Amendment (No. 2) Act 1988 which commenced on 1 July 1989. It provided:
“5D. On entering Australia, a non-citizen becomes a prohibited non-citizen unless:
(a) he or she is the holder of an entry permit that is in force; or
(b) he or she is the holder of a visa that is in force and the entry was made under subsection 6AA (1) or (2).”
The reference to the law in force prior to 1 September 1994 was necessary because the extensive changes effected by the Migration Reform Act 1992, which came into force on that date, did not apply to this application.
The Tribunal held that the third applicant was an illegal entrant because, at the date of his birth, which was taken to be the date of his entry into Australia, he did not satisfy the conditions of s.14(1)(a) or (b) of the Migration Act 1958. Consequently, the third applicant was not an Australian permanent resident for the purpose of the application of regulation 131A(d)(v) of the Migration Regulations 1989.
THE ARGUMENTS ON REVIEW
The forms of ss. 8 and 14 referred to by the Tribunal were first introduced into the Migration Act 1958 by the Migration Legislation Amendment Act 1989. These two sections, originally ss. 5D and 6 of the Migration Legislation Amendment Act 1989 respectively, came into operation on 19 December 1989.
The applicants argued that the opening words of s.14(1), “on entering Australia”, were intended to mean “on entering Australia after 19 December 1989”. As illegal entry was a criminal offence under s.77 of the Migration Act as in force at that time, it was contended that, if s.14 applied to past entries, the section would have made some entries retrospectively illegal. Such an intention should not be found in the
absence of clear words. The applicants also argued that the predecessor to s.8 applied to the application presently under consideration. No reason was given for this conclusion. The assumption was apparently made by the applicants that, if the predecessor to s.14 applied, the predecessor to s.8 also applied. This does not follow, because the argument concerning the application of s.14 depends on its wording applying to entries after 19 December 1989. The applicant’s contention was, therefore, that the Tribunal should have referred to the predecessor of s.14 of the Migration Act 1958, s.5D of the Migration Amendment (No. 2) Act 1988, instead of s.14 itself, and should have referred to the predecessor of s.8 of the Migration Act 1958, s.6AAA(a) of the Migration Amendment Act 1986, instead of s.8 itself. For easy reference, ss. 8 and 14 have been set out in juxtaposition with each of their predecessor sections earlier in my reasons.
The first respondent contended that, in s.14, the words “on entering Australia” referred to all entries, not only entries after 19 December 1989. There was no issue of retrospectivity because prior entries, in the circumstances outlined in s.14, were made illegal by earlier legislation. The intent of the legislation was merely to reflect changed nomenclature in the Migration Act 1958. The first respondent also relied on regulation 34A(1) of the Migration Regulations 1989, which provided:
“34A (1) Subject to subregulation (2) and any other provision of these Regulations, an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or the entry permit (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time.”
The first respondent thus submitted that ss. 8 and 14 applied at the date of the application and, consequently, the Tribunal was correct in its reference to those sections.
CONCLUSION
The oft amended provisions of the Migration Act 1958 are a morass of complexity. The applicants conceded that, even if their argument was correct as to the meaning of s.14, the Tribunal was bound to conclude that the third applicant was an illegal entrant within the terms of regulation 131A by reason of the operation of s.5D of the Migration Amendment (No 2) Act 1988 and s.6AAA(a) of the Migration Amendment Act 1986. Given that the effect of these sections is relevantly identical to ss. 8 and 14 as referred to by the Tribunal, this concession seems appropriate. In light of the concession, it is not surprising that the parties did not develop their respective arguments comprehensively. In these circumstances, it is undesirable for the Court to determine whether the Tribunal fell into error by referring to the wrong sections. Such a determination would not affect any issue to be resolved in the application. If there was such error, it would not have changed the result before the Tribunal. Consequently, it would be futile for the Court to quash the Tribunal’s decision and remit the application for rehearing and, therefore, the application must be dismissed.
COSTS
Mr Moloney, who appeared as counsel on behalf of the applicants, submitted that no order for costs should be made against the first
applicant because he was a necessary party to the proceedings as the nominator of the application by the second applicant for the entry permit. I heard oral evidence from the first applicant’s wife in support of the submission that he should not have to pay costs. She said that he had played no part in the proceedings. However, the application was brought on the basis that refusal of the entry permit would cause extreme hardship or irreparable prejudice to the first applicant. He was also an applicant for the review currently under consideration, and asserted a direct interest in the outcome. In these circumstances, it cannot be said that he was a party to these proceedings only as a matter of formality, or that he had no real interest in the proceedings.
Mr Moloney also submitted that any order for costs against the second and fourth applicants should reflect the fact that they were not wealthy people. I doubt that this is a relevant factor in determining whether an unsuccessful party should pay costs. But, in this case, the evidence does not demonstrate that the payment of costs would cause undue hardship to the second or fourth applicants. Consequently, the application will be dismissed with costs.
I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of his Honour Justice North.
Associate:
Dated: 31 May 1996
Counsel for the applicant: G.J. Moloney
Solicitors for the applicant: Wallis & Incerti
Counsel for the respondent: S. McLeish
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 20 May 1996
Date of judgment: 31 May 1996
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