Makisi v Minister for Immigration and Ethnic Affairs
[1995] FCA 5
•10 JANUARY 1995
CATCHWORDS
MIGRATION )
ADMINISTRATIVE LAW ) - Whether s. 39B of the Judiciary Act or s. 5 or 7 of the Administrative Decisions (Judicial Review) Act applied to a refusal or failure to make a decision upon an application the administrator denied receiving - power to make declaration in these circumstances under s. 39B and s. 21 of Federal Court of Australia Act - whether the Court could find as a fact that an application which the administration denied receiving had been received - whether evidence that an agent said he intended to lodge an application could be relied on as showing a circumstance tending to establish that it was lodged - hearsay rule - whether alleged proneness of an applicant to deceive immigration authorities was admissible - whether applicants could rely on up to date, rather than their original, particulars of their ground - whether relief should be denied for delay or an election to pursue another remedy - discussion of the effect of delay, in making a decision in respect of an application for an entry permit, upon the factors to be considered by the Minister.
Migration Act 1958, s. 6A(1)(e)
Judiciary Act 1903 , s.39B
Administrative Decisions (Judicial Review) Act 1977, ss. 5, 7
Federal Court of Australia Act 1976, s. 21
Migration Legislation Amendment Act 1989, s. 6(4)
Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589
Siu Kee Wong v The Minister for Immigration and Ethnic Affairs (unreported, Heerey J., 21 December 1994)
Wei v Minister for Immigration, Local Government (1991) 29 FCR 455
Italiano v Barbaro (1993) 40 FCR 303
Martin v Osborne (1936) 55 CLR 367
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Edelsten v Wilcox (1988) 83 ALR 99
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107
Singh v Minister for Immigration and Ethnic Affairs (unreported, Sackville J., 6 December 1994)
TANIELA MAKISI AND SIOSI MAKISI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NG 683 of 1993
Burchett J.
Sydney
10 January 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 683 of 1993
)
GENERAL DIVISION )
BETWEEN: Taniela Makisi and Siosi Makisi
Applicants
AND: Minister for Immigration and Ethnic Affairs
Respondent
CORAM: Burchett J.
PLACE: Sydney
DATE : 10 January 1995
ORDERS OF THE COURT
THE COURT ORDERS THAT:
It be declared that the applicants made in January 1987 an application within the meaning of section 6(4) of the Migration Legislation Amendment Act 1989 in which they sought an entry permit in reliance upon section 6A(1)(e) of the Migration Act 1958 as it then stood and a grant of permanent resident status.
The respondent make a decision upon that application after affording the applicants a reasonable opportunity to bring the particulars of the ground of the application up to date and to supply any appropriate up to date material in support of it.
The respondent pay the applicants' costs.
The applicants bring in, on a date to be fixed, short minutes of any further orders required in the light of these reasons.
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 ) NG 683 of 1993
)
GENERAL DIVISION )
BETWEEN: Taniela Makisi and Siosi Makisi
Applicants
AND: Minister for Immigration and Ethnic Affairs
Respondent
CORAM: Burchett J.
PLACE: Sydney
DATE : 10 January 1995
REASONS FOR JUDGMENT
BURCHETT J.:
This is an unusual case. It is unusual because, although it is an administrative law matter, it turns on a question of fact to be found by the Court. That is so because the respondent has declined, or at least has failed, to deal with an application, which the applicants claim to have made, on the ground that no such application was made. In this situation, the applicants' case is put on two bases: that section 39B of the Judiciary Act 1903 entitles them to relief in the nature of a mandamus upon their satisfying the Court they had made an application which the respondent was bound to decide; that they are entitled to relief under section 7 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) on the basis of the respondent's failure, for so long that there had been unreasonable delay, to make a decision for the making of which no period was prescribed but which he had a duty to make; and alternatively, under section 5 of the Judicial Review Act, on the basis that the respondent had actually made a decision not to deal with the applicants' application, and that within the meaning of section 5(1)(h) "there was no evidence or other material to justify the making of the decision", since "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist" (see section 5(3)(b)).
Each of these ways of putting the case raises the same fundamental question of fact - whether the claimed application was made. It is convenient at the outset to note that counsel for the respondent does not dispute my jurisdiction to decide that question of fact, although he contends it does not arise under the Judicial Review Act, but properly, and only, under the Judiciary Act. In my opinion, it arises under both Acts: see Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589; Siu Kee Wong v The Minister for Immigration and Ethnic Affairs (unreported, Heerey J., 21 December 1994) at 1-3. I appreciate that the mere formation of an opinion upon some question by an administrator, although the question arose under an Act, may not amount to a decision for the purposes of the Judicial Review Act until some action is taken, or refused to be taken, upon the basis of it; and then it is generally the decision to act, or to refuse to act, which is reviewable: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337-338, per Mason C.J.; Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107 at 125; Singh v Minister for Immigration and Ethnic Affairs (unreported, Sackville J., 6 December 1994) at 6-7. But here, there was more than the reaching of an opinion; there was a refusal or failure, based on the opinion reached, to deal with the application alleged to have been made. Such a refusal falls within the terms of s. 3(2)(g) of the Judicial Review Act, and such a failure attracts the operation of s.7. In any case, all appropriate relief, including a declaration, can be given under s. 39B of the Judiciary Act, supplemented by s. 21 of the Federal Court of Australia Act 1976, if the applicants make out their case: Dhillon at 127; Singh at 2.
The dispute erupted in relation to the applicants' application for further entry permits entitling them to resident status. They had arrived in Australia from Tonga separately during 1986. They are husband and wife, and shortly after Mrs Siosi Makisi's arrival, she gave birth to a child of the marriage by Caesarean section. Their entry permits having expired, and Mr Makisi's application for an extension having been rejected, they purchased tickets for their return to Tonga by flights to depart Sydney in January 1987. However, it appears that after they had consulted a Mr Sione Havea, they changed their minds, and completed with his assistance a form of application for permanent residence upon grounds which included a ground "shown as compassionate and humanitarian grounds". Mr Havea was, the evidence shows, an interpreter who was in the habit of providing assistance, whether for reward or out of benevolence does not appear, in connection with the lodging of applications of this kind. At the time, the Migration Act 1958 included section 6A(1)(e), enabling application to be made in cases where "there are strong compassionate or humanitarian grounds for the grant of an entry permit" to an applicant. That provision was repealed subsequently, but subject to the saving that the provisions of the Act relating to the granting of entry permits, as in force immediately before 19 December 1989, were to continue to have effect on and after that date for the purposes of applications for entry permits made before that date. See the detailed account of the provisions in question contained in the judgment of Neaves J. in Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 458 et seq; and see Goundar v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Burchett J., 31 October 1994). It is because the application completed with the assistance of Mr Havea was not dealt with before the amendments came into force that the question whether it had been lodged in January 1987 (that is, prior to 19 December 1989) is of vital importance to the applicants. In relation to any application lodged after 19 December 1989, the applicants will not be entitled to the benefit of section 6A(1)(e).
The respondent denies that any application was made until long after 19 December 1989. His evidence shows that no earlier application can now be found. However, there were of course files in relation to the applicants, and one of these has since been destroyed. On the evidence, it should not have been destroyed had it contained an application that had not been dealt with; but destruction is not the work of senior officers, and an error cannot be entirely excluded. In any case, if an application was lodged and has been mislaid, there is nothing to show that this must have occurred after the creation of a file for it, or after it had found its way to an existing file, rather than before. Nor was the respondent able to refute the possibility that he had received the lodgement fee of $200 required for an application.
The applicants sought to make out a case on circumstantial evidence, but their primary reliance was on the evidence of Mrs Makisi herself (Mr Makisi did not give evidence) and Mrs Havea, the former wife of the interpreter Mr Havea. There was evidence from both Mrs Makisi and Mrs Havea that they did not know the whereabouts of Mr Havea, whom Mrs Makisi had attempted to find.
I should say at once that Mrs Havea was a most impressive witness. She appeared to me to give her evidence honestly and straightforwardly, and to have a sound memory, although, of course, it must be borne in mind that she was speaking of an occasion a number of years ago. She is related to an uncle of Mrs Makisi, and frankly conceded a friendly relationship with both the uncle and the applicants. I do not believe, however, that Mrs Havea's evidence was modified in any way to suit the interests of the applicants, and I accept her as a witness of truth. On one matter, she was understandably uncertain; that was the question of the date of the applicants' interview with her husband. On that issue, I accept as most probable that the interview was in January 1987 when, if an application was to be made, it needed to be made promptly, because of the breaking of the previous arrangements for the departure of Mr and Mrs Makisi.
Mrs Havea's marriage to Mr Havea lasted until 1988, and during the marriage she observed that he used to give assistance to people with problems in migration matters. He was, as I have said, an interpreter. Early in the year 1987, she thought possibly in about the beginning or middle of February, she recalled Mr and Mrs Makisi coming to their home, where a form was filled out, in the dining room, the title of which she remembered as relating to change of residence status. The sum of $200 was paid to her husband, although she could not remember whether change was involved. Her husband took the form with him when he went out, saying to Mrs Havea that he was "going to the Immigration Department to lodge the application". Upon his return, he gave her a receipt, which she saw was in the names of Mr and Mrs Makisi. He asked her to get the applicants to come and collect their receipt. She telephoned them, and they came and received it from her.
In cross-examination, Mrs Havea said that her husband would "often go down to the Immigration Department to lodge applications on peoples' behalf". Counsel did not challenge this assertion, and there was no evidence suggesting that it was other than the truth. Two things seem to me to follow; that there was nothing at all improbable about Mr and Mrs Makisi asking him to do what he had done for numbers of others; and that there was a
fair probability that what he undertook to do, he actually carried out, at least in the normal course, since otherwise people would not have kept coming to him for assistance. In any case, he clearly had some practice, and must have become familiar with the required procedures.
Mrs Havea did not know to which office of the Department Mr Havea went, but she understood he usually went into Chifley Square, Sydney. Something was made of this at the hearing, because Mrs Makisi appears to have been under the impression that the application was lodged in Canberra, and there was evidence suggesting Mr Makisi may have thought the same. However, in my opinion, any such impression most probably arose from the fact that, in the latter part of 1986, Mr Makisi had made an application to the Commonwealth Ombudsman, which appears to have been declined before the end of the same year. Having regard to the lapse of time, it would not be surprising if some confusion developed when long afterwards the dispute arose.
Mrs Makisi's own evidence concerning the completion of the application by Mr Havea, the payment of the required filing fee of $200 (there was no suggestion raised that this was not the proper amount), and the obtaining of the receipt, was broadly consistent with that of Mrs Havea. There were minor discrepancies, as is I think only to be expected.
The evidence before the Court also deals with several other events. In January 1987, the applicants were living at 4/75 Alt Street Ashfield, the home of Mrs Makisi's uncle, Taani Taufa. There is uncontradicted evidence that Mr Taufa still lives there, as was asserted in correspondence prior to the hearing, so this matter was capable of being checked if the respondent doubted it, although the departmental file indicates that on a particular occasion, when officers called, he was not there, and information was obtained from a person thought to be the agent for the premises that eviction proceedings were contemplated. The officers reported speaking at the address to a Maria Mohammed, who seems not to have been known to the "agent". All this makes a very flimsy basis for a contention that I should reject direct evidence having no inherent improbability, the fabrication of which would be not only stupid but also, so far as the statement that Mr Taufa still lives there is concerned, quite pointless. However, Mrs Makisi said that, in April of 1987, she and her husband moved to 2 Powell Street Homebush. They did not inform the Department of their move. But I accept Mrs Makisi's evidence that her uncle regularly passed on any mail to them.
It was on 29 June 1987 that officers called out at the address in Alt Street, without success. The fact that they did so suggests any application lodged by Mr Havea is more likely to have been mislaid very soon after its receipt, rather than at some later time. Thereafter, nothing seems to have happened in relation to Mr and Mrs Makisi's application until 22 November 1988. On that date, a departmental form was filled out by an officer named Linda Howarth. She was not called to give evidence, although it was not suggested she was unavailable. The form is headed "PERMANENT RESIDENCE ENQUIRY FORM". It has the name of the applicant Taniela Makisi, and records that an application was lodged at Sydney in January 1987 relating to him. There is a note indicating that the enquiry was understood to have been made by a cousin, and its reason was shown as follows: "Needs copy of P/pt urgently. Want to know what happening with application child needs to go to school." The evidence suggests that nothing at all was done about this enquiry. There is an undated note, immediately following it on the file, that "no action will be taken at this time". The reason for that appears to have been "staff resources".
Counsel for the applicants points out that the problem raised by the amendments to the legislation did not exist as at 22 November 1988, and he therefore argues that the inference raised by the form, of the reality of an application made in January 1987, should be accepted. Mrs Makisi gave evidence that she was present when her husband telephoned the Department late in 1988, when she heard him say: "I want to make inquiries of my application for permanent residence." At the end of the conversation, he said "he would be waiting to hear from them". Cross-examined, she did not recall her husband claiming he was making an inquiry on behalf of his cousin.
There is another long gap in the departmental file until 10 July 1992, when there is a note of a telephone call from Mrs Makisi with reference to "their application for residence which was lodged in 1987 - they have not heard anything from the Dept." She advised that there were now two more children whom she would like to have included in the application. The departmental file and the evidence of some officers who were called indicate that, at this time, Mrs Makisi attempted to conceal her telephone number and did not correct the address originally given to the Department, from which, as I have said, the applicants had moved in April 1987. However, her husband gave the correct address very shortly afterwards. The Department advised Mr and Mrs Makisi that it had no application lodged in January 1987. Reference was made by the applicants to Canberra, as I have previously mentioned, to 1 January as the date of the making of the application, and to advice that it had been transferred to Rockdale in May 1987 (a date which could not be right since the Rockdale office was not opened until 1988).
The upshot of the discussions with the Department was the resubmission of the application on 7 October 1992. It is not suggested that the applicants were told their application could not proceed, as an application made on 7 October 1992, upon the ground originally raised. But that was how the matter was seen by the Department. Had it treated the form lodged on 7 October 1992 as a reconstruction of an original form lodged in January 1987, of course, the position might have been different. But it is clear that the attitude in fact taken was that, since the Department had no application made in January 1987 on its files, no such application had been made, and the application of 7 October 1992 was a fresh application as of that date.
Since there was some criticism levelled at the applicants on behalf of the Department in respect of the long delays until the telephone call in 1988, and then until the telephone call in 1992, it is I think relevant to point out that the letter acknowledging the application of 7 October 1992 included the following:
"Please note that there are long delays involved in the processing of some applications and that we are not able to answer your enquiries relating to the progress of your application unless you have a genuine and compelling reason for needing such a progress report. Your application will be processed as quickly as possible and making unnecessary enquiries will only slow down the processing of all applications."
This was plainly a form letter, and it was not suggested that the form was a new one, nor that the same information would not have been given in 1987. The clear inference is that any departmental officer handling enquiries in 1987, 1988 or 1992 would have been likely to have said something to the same effect, and accordingly I accept Mrs Makisi's evidence about the telephone conversation in 1988, particularly as Linda Howarth was not called.
The letter of acknowledgment of the application form lodged on 7 October 1992 is interesting for another reason. It contains also the following:
"You should retain your fee receipt and this letter as proof that you have lodged such an application. You may need to provide proof of your application if you have reason to approach other Government agencies e.g. Medicare, Overseas Student Office, Department of Social Security."
This too is apparently part of the form letter, and it tends to support evidence given by Mrs Makisi about her husband's retention in his wallet of the receipt obtained from Mrs Havea. It is consistent with the evidence of the arrangements made by Mr Havea for the lodgement of the application and concerning the receipt, since it is likely he would have given similar advice to that contained in the Department's form letter. There was no direct evidence of anything said about delays by Mr Havea, or of what Linda Howarth said on the telephone. But the probability is that each would have said something on the subject. The fact is that delays were extensive, as the Department's form letter indicates, and the complete lack of response to the enquiry in 1988 confirms. Had there been any sense of urgency, it would have been a simple matter to have sent a letter to the address noted at the time of the enquiry. Counsel for the respondent argued that this may not have been done because compliance officers had failed to find the applicants at that address about a year and a half previously. However, when the same address was given at the time of the telephone enquiry, it must have been obvious that there was a strong possibility either that the applicants had always been known at that address, although not found on the one occasion in question, or that they had returned to it. The fact is no further contact was attempted.
The greatest obstacle to the applicants' case is their inability to produce the receipt for $200. As I have said, the respondent was unable to provide evidence that this sum had not in fact been paid; but the applicants, for their part, could only
provide secondary evidence of the existence of the receipt, which was adduced from Mrs Makisi and Mrs Havea. The explanation given by Mrs Makisi for the applicants' inability to produce the receipt was that Mr Makisi had kept it in his wallet, which was stolen from his car. She gave a circumstantial account of the theft, which occurred during the year 1989, and she said that the police were called. The keeping of the receipt in the wallet is, as I have already implied, consistent with the practice evidenced by the Department's form letter of acknowledgment of applications of this kind.
All the circumstances in evidence have to be taken into account. However, the central question at the hearing was whether I should accept the evidence of Mrs Havea and Mrs Makisi concerning the arrangements for the lodgement of the application and the subsequent return of Mr Havea with the receipt. There was no suggestion in cross-examination of Mrs Havea that the production of this receipt was consistent with any other explanation than that Mr Havea had in fact lodged the application and received it in respect of the lodgement fee which, according to Mrs Havea, the applicants had paid to him. I bear in mind, of course, that Mr Makisi who was not claimed to be unavailable, did not give evidence. But, as I have said, I found Mrs Havea an impressive witness. I have accepted her account of events. On that account, if one adds to Mr Havea's familiarity with the task of lodging applications on behalf of other persons, and his filling out of the form for Mr and Mrs Makisi, his departure with a statement of intention to lodge the application and his return with an appropriate receipt, there being no suggestion that anything had occurred to change his mind in the meantime, very strong grounds are shown to infer that the application was in fact lodged.
The statement of intention to lodge the form is, of course, not to be rejected as hearsay. On the contrary, it is direct evidence of his intention, which is itself a fact to be taken into account in reaching a conclusion as to what happened. The authorities are discussed in the joint judgment of Neaves, Burchett and Whitlam JJ. in Italiano v Barbaro (1993) 40 FCR 303 at 320. The rule is there stated:
"Where a person's intentions are material, evidence of statements made by him which indicate those intentions is original evidence, and not hearsay. ... Any controversy about this question, for Australian courts, has ... been laid to rest: Walton v The Queen (1989) 166 CLR 283. There, in a murder trial, evidence of the deceased's statements, indicative of her intention to meet the accused at a particular place, was admitted as evidence of her intention, from which the inference could be drawn that she did go to that place and met the accused."
See also Dobson v Morris (1975) reported in (1986) 4 NSWLR 681, where the Court relied on very similar reasoning.
Counsel for the respondent launched a vigorous attack on the credit of Mr and Mrs Makisi. So far as the proposition was that they were the kind of persons who should be seen as likely to have fabricated the story of an application in January 1987, it
seemed to me to be in direct conflict with what Dixon J. said in Martin v Osborne (1936) 55 CLR 367 at 375:
"The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded [from the circumstances that may be taken into account as evidence of a matter to be proved]."
In any case, it is difficult to imagine what the applicants had to gain from such a fabrication in 1988.
The next question is whether the applicants are disentitled from insisting upon their application made in 1987 by the delays which have occurred since, or by their pursuit (to the stage of review of an initial decision) of the application lodged in October 1992. Counsel for the respondent put the point as high as a matter of election. However, there is no suggestion in the evidence of any such knowledge as would be requisite to establish an election. Far from being aware of the availability of alternative courses of action, and of the nature of the alternatives, I am satisfied that the applicants were not told, and did not understand, that the application lodged in October 1992 would be treated as a fresh application, subject to entirely different (and much less favourable) considerations from those applicable to the application they had already made. The natural way for them to view the matter was that the Department could not find their original application, and that accordingly the position had to be reconstructed by the lodgement of a further document. There is no evidence that they were given to understand anything else. The case is entirely different from Newby v Moodie (1988) 83 ALR 523, an authority relied upon for the respondent, where the Full Court (at 526) laid emphasis on the nature of the decision to which the appellant was there held, that decision having been "deliberate" and "calculated".
So far as the delays prior to 1992 are concerned, the Department's practices make it impossible fairly to lay any blame at the door of the applicants. Counsel for the respondent argued that the Department could not contact them. But it seems likely that in fact the Department had lost the application at a very early stage, and therefore did not write to the applicants about it. There is no suggestion that, when the enquiry was made of the Department in 1988, any attempt at all was made by any officer to follow it up. The evidence of Mrs Makisi - which is consistent with what had been asserted in writing by her solicitor prior to the institution of this proceeding - is that at all times her uncle lived at the address the Department had for the applicants, and was in the habit of passing on to them any mail addressed to them there.
The applicants have now been in Australia a considerable time, and have children who were born here. On balance, there may, or may not, be good reason in Australia's interests either to permit, or to refuse to permit, them to remain. That is not for me to decide. But I think it would be a wrong exercise of my discretion to deny them any decision on the true merits of an
application in fact lodged by them through Mr Havea, and expressly preserved, when the Act was amended, by the terms of the amending legislation.
An attempt was made by counsel for the respondent to argue that the application is in any event doomed to fail, and that for this reason the applicants should be denied relief. However, I do not know how strong the application may be, and therefore cannot decide the matter on such a basis. Whatever the merits may have been in January 1987, the decision having been delayed so long, it will be the duty of the decision maker to consider the matter now "on the basis of the most current material available": per Mason J. in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45; and see also Edelsten v Wilcox (1988) 83 ALR 99 at 108. One obvious matter to be considered, which may call for compassion, will be the extent to which the very great delay, for which the Department itself must bear major responsibility (since it was the Department that mislaid the application and the Department that ignored the inquiry made in 1988), may have led to the integration of the applicants, and particularly their children (who, of course, bear no responsibility for the delay), into the Australian community, and the weakening of their ties with their original homeland (in the case of the applicants), and the obliteration of any such ties (in the case of their children). An exercise of discretion, having regard to Australia's interests, will have to take account of these problems: cf. the decision of the Full Court in Chaudhary v Minister for Immigration and Ethnic Affairs (1994)
49 FCR 84 at 87-88. Even if I were to regard the application as having but slim prospects, a view which the state of my knowledge forbids me to take, the considerations mentioned by Wilson J. in Kioa v West (1985) 159 CLR 450 at 603 would require me to uphold the important purposes of the legislation providing for judicial review. It would be inconsistent with the maintenance of those purposes to condone a refusal by the Department to deal with an application which it had mislaid, the court having been satisfied that the application was in fact lodged.
The final argument of counsel for the respondent was that the terms of the application could not now be established, so that no effective relief could be granted. As I have already indicated, I am satisfied that the application was made under the provisions of section 6A(1)(e) as they stood at the relevant time. The particulars of the circumstances said to satisfy that ground are no longer of decisive importance, in view of the lapse of time and the principle stated by Mason J. in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. I am satisfied, on the evidence, that in January 1987 the situation of Mrs Makisi's then new born child was in fact put forward; I do not know what (if any) other matters were put forward. If I make an order in the applicants' favour, it will be open to them to supply up to date particulars and evidence in support of the ground of their application.
Accordingly, I declare that the applicants made in January 1987 an application within the meaning of section 6(4) of the Migration Legislation Amendment Act 1989 in which they sought an entry permit in reliance upon section 6A(1)(e) of the Migration Act 1958 as it then stood and a grant of permanent resident status; I order that the respondent make a decision upon that application after affording the applicants a reasonable opportunity to bring the particulars of the ground of the application up to date and to supply any appropriate up to date material in support of it; I order the respondent to pay the applicants' costs; and I direct the applicants to bring in on a date to be fixed short minutes of any further orders required in the light of these reasons.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.
Associate:
Date: 10 January 1995
Counsel for the Applicant: Mr I.D. Temby Q.C. with Mr N.J. Williams
Solicitors for the Applicant: Parish Patience
Counsel for the Respondent: Mr P. Roberts
Solicitor for the Respondent: Australian Government Solicitor
Date of hearing: 7 July 1994
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