Lee, E.T. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 616

Re: ENG THAY LEE
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and
REGIONAL MANAGER NORTHERN REGION DEPARTMENT OF IMMIGRATION LOCAL GOVERNMENT
AND ETHNIC AFFAIRS
No. G757 of 1991
FED No. 616
Migration - Statutory Interpretation
(1992) 37 FCR 142
(1992) 28 ALD 222 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Migration - migration (subject to completion of formal requirements in limited period) before amendments to Migration Act on 19 December 1989 - visa allowed multiple travel in conditional period - visit to country of birth for father's funeral during conditional period - return to Australia after 19 December 1989 - omission to complete formal requirements in conditional period - entitlement to permanent residence depends on issue of temporary entry permit - grant of temporary entry permit depends on whether applicant "entered" Australia before or after 19 December 1989 - consideration of the concepts of "entry" and "re-entry" as apply to Australian residents

Statutory Interpretation - Words and Phrases - "entry" - "re-entry" - "entry permit" - "visa"

Administrative Decisions (Judicial Review) Act 1977 sections 5(1)(e) and (f), 5(2)(b) and (g)

Migration Act 1958 (pre 19 December 1989) sections 6, 6AA(4), 9(1), 11, 11A(1), (post 19 December 1989) sections 4(1), 17(3), 18(1), 47(1), regulations 22B, 34A, 35AA(1)(b) and (c), 128(1)(a)(ii) and (iii), 131

HEARING

SYDNEY

#DATE 26:8:1992

Counsel and solicitor J T Svehla instructed by
for the applicant Elsworthy Jones Solicitors

Counsel and solicitor R J Weber instructed by
for the respondents Australian Government Solicitor

ORDER

1. The decision under review is set aside and remitted to the first respondent for further consideration in accordance with these reasons for judgment.

2. The respondents are to pay the applicant's costs.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is a most unfortunate case. As an accepted nominee under the Employer Nomination Scheme, the applicant, who is a Malaysian, was granted permission on 9 August 1989 to migrate to Australia from New Zealand where he was then living. His visa allowed for multiple travel in and out of Australia up to 8 February 1990 when it expired. The letter granting him permission to take up residence in Australia (the letter) was as follows:

Dear Mr Lee

I am pleased to inform you that your application to migrate to Australia has been approved. This approval will remain valid until 8.2.90.

The visa issued to you is subject to the condition that should your marital status change prior to your migrating to Australia, you should inform this office. A special code is included in your visa to indicate to the officers at the Immigration clearance point that you are single upon arrival in Australia.

Also, your visa provides for a temporary stay of six months. The grant of resident status will depend on your character clearance being received during the period of temporary stay. You are advised to contact the Department of Immigration prior to the expiry of the period of temporary stay. Enclosed is your passport which has been endorsed with the appropriate visa.

The visa is endorsed:

CONDITIONAL RESIDENT

WORK UNRESTRICTED

1. Apparently there was some urgency about the processing of his residency application as a consequence of which it was decided that the character checks which usually precede permission to migrate could be dealt with after migration. His intended position was Product Marketing Manager for Mitsui Computer Ltd, a position which required specific skills in the computer industry apparently possessed by the applicant. Upon arrival in Australia on 13 September 1989, he was given an entry permit valid to 8 February 1990. The permit stamped in his passport was not expressed to be conditional.

2. On 28 November 1989, the applicant left Australia to attend his father's funeral in Malaysia and to assist his family to organise affairs after his death. He returned to Australia on 7 January 1990, his passport being again stamped with unconditional permission to remain until 8 February 1990. But the disruption and grief caused by his father's death caused him to overlook the condition of his visa relating to character evidence. He was thus categorised as an illegal entrant on 9 February 1990.

3. When he notified the office of the second respondent of his oversight, he says he was advised to apply for an extended eligibility temporary entry permit. What he actually submitted on 4 April 1990 was an application for permanent residence. As a non-citizen who had already entered Australia, this could only be granted if he was the holder of a valid temporary entry permit: s.47(1) of the Migration Act. Hence he also submitted an application for such a permit which, when made at the same time as an application for permanent residence, operates as an application for permission to remain in the country while processing of the residency application takes place: regs 22B, 131.

4. The application for permanent residence was refused by letter dated 28 August 1991 (the refusal) and the applicant now seeks judicial review of the refusal as an improper exercise of the powers conferred by the Migration Act 1958 in contravention of section 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977. The particulars of the alleged errors of law are that the decision maker failed to take into account a relevant consideration (s.5(2)(b)) and acted unreasonably (s.5(2)(g)). It is also alleged that the decision maker applied the wrong Migration regulation in contravention of section 5(1)(f). The application for judicial review was filed out of time but an extension of time was granted by consent at the beginning of the hearing.

5. The refusal explained, in what must to the applicant have seemed an incomprehensibly complex way, the reasons why the application for permanent residence was declined. It also advised the applicant that he "may be entitled" to apply for a review of the refusal and enclosed a pamphlet of and an invitation to contact the Migration Internal Review Office (MIRO). The applicant promptly applied to MIRO for a review but on 22 October 1991 was advised that his application was ineligible for review because he did not have a valid entry permit at the time his application was lodged. Precisely why the applicant could not have been so advised in the refusal I do not know, but the consequence was a further three months delay in processing the applicant's status and no doubt some additional time for departmental officers and delay for other cases in waiting. As the $150 fee lodged by the applicant was refunded, the whole operation of the "ineligible review" must also have involved not a little public cost.

6. Regulation 34A requires that applicants meet prescribed criteria at the time an application is lodged. These criteria for persons applying on economic grounds (economic applicants) are set out in regulation 128. The refusal said that these criteria were not met in three ways:
   1. The applicant was illegally in Australia when his application was
   

lodged on 4 April 1990, and regulation 128(1)(a)(ii) requires that economic applicants not be illegal when their applications are lodged.

2. The applicant had not held temporary entry permits aggregating 12

months residence in Australia, nor had he held a student or working holiday permit, contrary to the requirements of regulation 128(1)(a)(iii).

3. The applicant was not entitled to the concession granted to some

illegal entrants by regulation 35AA because, by sub-regulation

(1)(c)(i)(B), the application for temporary entry must be lodged within 28 days of becoming illegal. This period was exceeded because the applicant became illegal on 9 February 1990 and only lodged his application on 4 April 1990.

1. Although the refusal does not mention a decision to refuse the requested temporary entry permit, it is obvious, and the effect of finding 1 is, that the application for that permit was also refused. Accordingly, this application should be taken as seeking to review that decision as well. The facts and law in findings 1 and 2 are not disputed. In the way I shall explain, finding 3 raises the only issue between the parties.

2. As at 4 April 1990 when the applicant lodged the relevant applications, regulation 35AA(1) provided:
   

(1) The Minister may, in spite of any other provision of these Regulations except subregulation (2) and subregulations 42(1A), (1B) and (1C), grant a temporary entry permit to a person who is an illegal entrant if:

(a) in the case of a person to whom paragraph 42(1C)(a), (b) or (c) applies:

(i) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and

(ii) the Minister is satisfied that the person:

(A) has not departed from Australia since that entry; and

(B) has developed close personal ties with Australia; or

(b) in the case of a person who entered Australia before 19 December 1989, not being a person referred to in paragraph (a):

(i) the person applies for the entry permit not later than 31 May 1990; and

(ii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and

(iii) the Minister is satisfied that there are compelling reasons for granting the entry permit; or

(c) in the case of a person who entered Australia on or after 19 December 1989:

(i) the person applies for the entry permit:

(A) where the person became an illegal entrant before 20 January 1990 - not later than 16 February 1990; or

(B) where the person became an illegal entrant on or after 20 January 1990 - not later than 28 days after becoming an illegal entrant; and

(ii) any entry visa or entry permit that expired was not granted subject to the condition that the holder would not be entitled to be granted an entry permit, or a further entry permit, as the case requires, while the holder remained in Australia; and

(iii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and

(iv) the Minister is satisfied:

(A) that the person became an illegal entrant because of factors beyond his or her control; and

(B) that there are compelling reasons for granting the entry permit; and

(C) that the person complied substantially with any conditions subject to which any such entry visa or entry permit was granted (other than a condition of which the person was in breach solely because of the expiry of any entry visa or entry permit); and

(D) that the person would have been entitled to be granted an entry permit of the class applied for if he or she had applied for such an entry permit immediately before becoming an illegal entrant; and

(E) that the peron intends to comply with any conditions subject to which the entry permit is granted; or

(d) the person:

(i) was notified on or after 21 November 1989 that he or she was entitled, under the provisions of the Migration Regulations relating to second applications as in force before 19 December 1989, to make an application for an entry permit; and

(ii) had not lodged the application before 19 December 1989; and

(iii) applies for an entry permit not later than 30 September 1990.

1. The parties agree that paragraphs (a) and (d) do not apply to this case. The dispute is whether the appropriate provision is paragraph (b) or (c). The fundamental relevant difference between the two provisions lies in the date of "entry" into Australia.

2. This regulation, widely called an "amnesty", provided a mechanism for people who were illegally in Australia to regularise their status. Those who came here before 19 December 1989 had until 31 May 1990 to submit their applications for permission to stay, whenever they became illegal. Those who came here after 19 December 1989 and became illegal before 20 January 1990 had until 16 February 1990. Those post-December arrivals whose illegal status occurred after 20 January 1990 had 28 days from becoming illegal. Much stricter additional pre-conditions attach to applications in the latter two categories. The significance of December 1989 is of course that the Act, and therefore the rules governing legalisation of status, as well as many other matters, changed substantially at that time.

3. The so-called "amnesty" did not provide, as amnesties usually do, an automatic or general legalisation of status to all or some of those who were illegal at the time, or arrived and became illegal shortly thereafter. Regulation 35AA actually only permitted those who "entered" Australia before 19 December 1989 a broader and less rigid opportunity to regularise their illegal status, whenever obtained, than applied to persons who "entered" Australia after that date. The respondents say that the applicant was a person in the last of the categories covered by regulation 35AA in that his relevant "entry" took place on 7 January 1990 and his illegal status occurred on 9 February 1990. The applicant did not challenge the fact or timing of his illegality but submitted that he "entered" when he migrated on 13 September 1989. Thus this dispute turns on which of these two dates is fixed by the Migration Act as the applicant's date of "entry" into Australia. Each of the parties conceded that if wrong on this question, the position respectively adopted on this judicial review application is also wrong.

4. The letter stated that the applicant had been permitted to migrate to Australia. Its sentence - "This approval will remain valid until 8.2.90" - can only mean that the permission was conditional upon the applicant migrating before that date. This condition was fulfilled when he migrated to Australia on 13 September 1989. His permission to migrate was also conditional upon his "character clearance being received during the period of temporary stay" of six months. It is conceded that this condition was not fulfilled, although the burden of carrying it out was not expressly stated in the letter and it is not clear that the department was in fact waiting for some documentation or other information from the applicant in relation to character at the time his visa expired.

5. Section 4(1) of the Migration Act defines "entry" to include "re-entry", "enter" to include "re-enter", and "entered" to include "re-entered". The endorsements on the applicant's visa and the fact that overseas travel in the interim would not disturb his conditional residence thus mean that if, when the applicant returned to Australia on 7 January 1990 after his father's funeral, he "entered" or "re-entered" Australia within the meaning of those terms in the Migration Act, the respondents were correct in refusing his applications.

6. It cannot be doubted that when the applicant returned from Malaysia, he was resuming his conditional residence which was then still valid. No doubt he even returned to the same home and job he had left. However, the respondents argue that when Mr Lee left Australia for the funeral, the permit granted on his original entry on 13 September 1989 had no further force or effect. They submit that when he returned on 7 January 1990, he had no right of re-entry, and therefore had to apply for a new permit for this purpose.

7. Subsection (1) of section 11A of the Migration Act as it stood before 19 December 1989 provided for the grant of visas, that is, permission to travel to Australia. Paragraph (c) of that subsection enabled visas to include permission to travel to and from Australia on any number of occasions thereafter. The applicant's visa seems to have been issued under this provision. (Sections 17(3) and 18(1) of the present Act similarly envisage visas with multiple entry rights of the kind given to the applicant.) Sections 6AA(4) and 11 provided that a visa was not an entry permit and did not entitle the holder to entry, but section 6 provided for the issue of entry permits. Section 9(1) provided:
   

Where a non-citizen who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia.

1. These provisions raise at least considerable anomalies in the respondents' submissions in this respect. I have some difficulty in accepting that when Mr Lee arrived to migrate on 13 September 1989, he could seriously have been refused "entry" in the statutory sense. Persons taking up permission to migrate to another country, even if confirmation of the permission still requires some formal documentation, usually sever their ties, relinquish their jobs, pay out their credit cards and bank accounts, sell their homes, and conclude all the other normal attributes of life when they do. If not citizens of the country they are leaving, they may lose their legal status there and not be able to revive it. If married, their spouses will have similarly closed off that section of their lives. If with families, their children will have left their schools, friends, and sporting and extra curricular activities.

2. In this regard part of a letter written on 15 June 1989, after the receipt and preliminary consideration of the application, by the respondents' department to the employer who nominated Mr Lee for migration to Australia is instructive (the employer's letter):
   

Although you have established that you are unable to fill the position of Product Manager from local sources and your nomination has been authorised accordingly, your nominee will not be approved for entry unless all migration requirements are met. These include medical examinations and character checks for your nominee and accompanying family members and ensuring that your nominee's qualifications are acceptable against Australian standards. A satisfactory qualification assessment is essential where registration or licensing is required in Australia. The overseas processing office will decide the final outcome of each application and you should warn your nominee not to sell property, make travel arrangements or enter into any commitments until written notification of approval has been received from that Office.

1. This express instruction is clear and unequivocal. Nothing should be done to alter the applicant's circumstances in New Zealand or undertake unbreakable obligations in Australia while the application for migration to Australia is being processed. The implication is no less unmistakable. When the application has been processed and the appropriate permission has been obtained, the caveat against the applicant selling and closing up in New Zealand and making firm arrangements and commitments in Australia no longer applies.

2. This particular matter does not have to be directly decided here because entry was in fact granted to the applicant when he arrived to take up residence. However, the principle involved is for all practical purposes identical to the situation of the present dispute where the meaning of "entry" to Australia for a person who had at the relevant time been accepted by Australia as a permanent member of Australian society requires determination. The fact that final confirmation of resident status was made subject to the completion of one formality must be looked in the light of the fact that, despite the contents of the employer's letter which made this requirement a necessary non-negotiable pre-requisite for "entry", the absence of a character clearance was not regarded in this case as sufficient to delay approval and physical migration. In my opinion this principle makes the respondents' submission on this question a highly technical and ultimately erroneous approach to the legislation as intended to apply to the facts in this case.

3. To a person who had migrated to Australia, subject only to completion of formalities, the condition that an entry permit be required on each return from each overseas trip, any number of which were permitted, was to say the least formal. Australia was his home. All his goods and possessions would have been here. If he had one, his family would have been here. As the employer's letter shows, he had a serious employment position in this country requiring particular skills which Australia had decided or accepted that he possessed but were otherwise unobtainable in the Australian workforce when his employer nominated him for migration. It is not seriously conceivable that a legal resident in such circumstances who continues to qualify for the confirmation of his resident status, as Mr Lee did on 7 January 1990, could be refused permission to re-enter what was in effect his own or adopted country. No doubt that is why "entry permit" is defined by section 4(1) of the Migration Act as "permission to enter or remain in Australia" (my emphasis). No doubt that is also why counsel for the respondents very properly conceded at the hearing that a refusal of entry in such circumstances would be an error of law.

4. It is not suggested that this applicant is other than truthful and bona fide. The opportunity to test his assertions by cross examination at the hearing was declined. There is thus no reason to doubt that the applicant has at all relevant times intended to migrate and to reside permanently in Australia. Nor is there any reason to question that he always intended to comply with Australian law in the due formalisation of his status here. It is easy to accept that only the trauma and tragedy of his father's death upset his firm and otherwise well organised plans in this regard.

5. In all these circumstances, I find myself unable to adopt a formula of interpretation which treats this man on 7 January 1990 as if he were a first time or occasional visitor to this country when in fact he was living in Australia at the time and was to all intents and purposes returning home. In my opinion, an Australian legal resident does not "enter" or "re-enter" his homeland in the statutory sense after every overseas trip, even though that is what physically occurs. The Migration Act and regulations cannot have been intended to bear such a narrow and potentially oppressive interpretation.

6. The respondents say that this produces an absurd result in that "anyone who has ever been in Australia since Federation, regardless of how fleeting that visit was, and when it occurred, provided that it occurred prior to 19 December 1989, is subject to the provisions of Regulation 35AA(1)(b)". This approach gives in terrorem arguments a new lease of life. Even if the submission was correct, which it is not, I do not think that the drafters of the Migration regulations can look to the courts to save them from any absurdities that might from time to time appear in their produce. These regulations simply do not admit of or warrant a judicial attempt at interpretation to produce systemic consistency, logic or rationality.

7. Moreover, even assuming that the people referred to in the submission are still alive, it is difficult to conjure up the image of large numbers of aged people, who last saw Australia in "the good old days", now lined up at Australian diplomatic missions or immigration offices overseas craving for the opportunity to live out their declining years in Australia and waiting for this interpretation of regulation 35AA to enable them, for the first time, to make application to do so. No doubt if it is so, we shall not be kept waiting long for another regulation to keep the rest of us cleansed of and well insulated from any such invasion.

8. As I see it, the substantive error in this argument is that this applicant was granted permission to migrate to Australia. From 13 September 1989 onwards, including on 7 January 1990, Australia was where he lived and where he was lawfully as a migrant. Hence this case does not turn on an abstract concept of permissive "entry" and "re-entry" appropriate to casual visitors to Australia at any time but on the appropriate meaning of these terms for Australian permanent residents. I doubt that there have been or will ever be large numbers of those who have experienced this applicant's circumstances and misfortune so as to place regulation 35AA(1)(b) under threat of imminent inundation.

9. Subject to the Minister's satisfaction as to the matters referred to in regulation 35AA(1)(b)(iii), the applicant is in my view entitled to the application of that subregulation and is eligible for a temporary entry permit. If granted, he would then be entitled to consideration for permanent residence. The decision maker erred in assessing the applicant under regulation 35AA(1)(c). The decision under review will be set aside and remitted to the first respondent for further consideration in accordance with these reasons for judgment. The respondents will pay the applicant's costs.