McDermott, K.P. v The Minister for Immigration, Local Government & Ethnic Affairs
[1988] FCA 292
•13 JUNE 1988
Re: KATHLEEN PATRICIA McDERMOTT
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WAG 26 of 1988
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)
CATCHWORDS
Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - Application for judicial review of decision "to reject an application for resident status" - Application not the holder of temporary or other entry permit then in force when decision to grant or refuse application was made - Preliminary question as to whether decision-maker is prohibited from granting application in these circumstances.
Administrative Decisions (Judicial Review) Act 1977 ss.5, 13, sub-s.16(2)
Migration Act 1958 ss.6, 6A, 7, 10, 11A, 12, 13, 18, 31A, 35, 38, 39, sub-ss.14A(2), 27(2A), 27(2AA), paras. 5(2)(a), 27(1)(a), 27(1)(ab)
Migration Act Amendment Act 1987 s.4, sub-s.2(2)
Federal Court Rules 0.29 r.2
HEARING
PERTH
#DATE 13:6:1988
Counsel for the Applicant: Ms R. Nicoll
Solicitor for the Applicant: Ms R. Nicoll
Counsel for the Respondent: Mr. P. Macliver
Solicitor for the Respondent: Australian Government Solicitor
JUDGE1
This is a decision on a preliminary issue raised in the course of a directions hearing for an application for an order to review a decision of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977.
The application described the decision sought to be reviewed as a decision "to reject an application for resident status". The application does not refer to the Migration Act 1958. However, the statement of reasons supplied to the applicant by the delegate of the Minister in accordance with s.13 of the Administrative Decisions (Judicial Review) Act 1977 states that the reasons relate to a decision made pursuant to sub-s.6(2) of the Migration Act 1958.
Those reasons refer to an "application for resident status". I cannot find those words used in the Migration Act 1958, but it appears to be understood by the parties that they refer to a request for the issue of an entry permit other than a temporary entry permit. (See Migration Act 1958 sub-ss.6(6) and 6A(8)). Sections 12 and 13 of the Migration Act 1958 refer to a person who has "been present in Australia as a permanent resident" and sub-s.14A(2) defines that expression as referring to a person whose continued presence in Australia is not subject to any limitation as to time imposed by law but it does not include a person who is during that period a prohibited non-citizen.
At the directions hearing, counsel for the respondent Minister contended that on the given facts of this case a preliminary question of law arose as to whether the decision was capable of review on the grounds set out in the application.
That question was not reduced to writing, but, as described in Court, the essence of it appears to be as follows:
Is the Minister, or officer authorized by the Minister, prohibited from granting an entry permit other than a temporary permit to a non-citizen who is not the holder of a temporary entry permit which is in force on the day the decision to grant or refuse such a permit is made?
The parties agreed that it was appropriate for this question to be decided as a preliminary issue. The application was, therefore, set down for limited hearing on the preliminary question pursuant to O.29 r.2 of the Federal Court Rules. Counsel for both parties have made submissions to the Court on the question.
Upon the hearing of argument on the preliminary question, a statement of agreed facts relevant to the question was submitted by counsel. Those agreed facts as augmented by matters further agreed by counsel at the hearing are set out below:
1. The applicant, her spouse and five children are citizens of the Republic of Ireland.
2. The applicant, accompanied by her spouse and four children arrived in Australia on 17 May 1987 from New Zealand and on arrival were all granted temporary entry permits valid until 17 August 1987.
3. On 3 July 1987 the applicant and her family made applications for further temporary entry permits. The reason given for these applications was that the applicant was expecting a baby in August and that her doctor had advised that she should not travel until after the baby was born.
4. The Department granted the applicant and her family further temporary entry permits which were valid until 31 October 1987.
5. The applicant's child, Grainne Ailbhe, was born on 10 September 1987.
6. On 26 October 1987 the applicant and her family made applications for further temporary entry permits requesting that they be granted an extension of their stay in Australia for a period of three months. The reasons given for seeking further temporary entry permits were that the applicant was unable to travel back to Ireland because of medical reasons and also that the applicant and her family were waiting on confirmation of an extension of their airline tickets.
7. The applicant made oral application for permanent residence on or before 30 October
1987. On 4 November 1987 the applicant submitted an application in writing for permanent residence for herself and her family on the basis of strong compassionate or humanitarian grounds.
8. On 26 November 1987 the Department's State Director, Mr. David Jolly, made a decision refusing the application for permanent residence. Notification of this decision was conveyed to the applicant by letter dated 30 November 1987.
9. On 26 November 1987 the Department made a decision refusing the applications for further entry permits by the applicant and her family. Formal advice of this decision was given to the applicant by letter dated 16 February 1988.
Item 9 of the agreed facts refers to the application for further temporary entry permits recited in Item 6.
A decision was made on 26 November 1987 to refuse the application for a "permit other than a temporary entry permit" and the applicant was notified of that decision by letter dated 30 November 1987. On the same day, 26 November 1987, a decision was made to refuse the applications for further temporary entry permits, but a letter notifying the applicant of that decision was not forwarded until 16 February 1988, four days after the commencement of this application for review.
From the statement of reasons for decision it appears that the decision-maker, described therein as the delegate of the Minister whom I take to be an officer authorized by the Minister by instrument in writing pursuant to sub-s.6A(3) of the Migration Act 1958 ("the Act"), reached his decision on the application for the grant of an "entry permit other than a temporary entry permit" as if the applicant were the holder of a temporary entry permit then in force. The decision-maker did not refuse the application on the ground that he was prohibited from granting such an entry permit because the applicant was not the holder of a temporary entry permit then in force, the argument now advanced by counsel for the respondent on the preliminary question.
The two applications referred to in the statement of agreed facts were presumably made under the provisions of sub-ss.7(2) and (2A) of the Act.
Counsel for the respondent Minister advised that it was conceded that the applicant had made an application for an "entry permit other than a temporary permit" prior to the expiration of the existing temporary entry permit which expiration was to occur on 31 October 1987. On the statement of agreed facts an application for such a permit was not made in writing until 4 November 1987 which was after the expiration of the existing temporary entry permit. Pursuant to sub-s.7(2A) of the Act, the request for the grant of a further entry permit "shall be taken not to have been made unless the request is in writing in accordance with the relevant form." That provision was inserted by s.4 of the Migration Amendment Act 1987 and pursuant to sub-s.2(2) of that Act the amendment came into operation on 16 September 1987.
It is probably appropriate to read the provision as being enabling or facultative in nature rather than mandatory, particularly when the draftsman has declined to state the requirement in positive terms and has used the words "taken not to have been made" which lack the strength of the commonly used word "deemed". The amendment appears to give the Minister or an authorized officer a discretion to judge whether an application has been duly made but does not preclude him from considering an oral application as a matter of grace. There is no prohibition on the grant of a permit. (See Williams v. Town of Claremont (1976) WAR 125.) In the present case it is not disputed that an application was duly made at a time when the applicant held a temporary entry permit then in force.
The scheme of the Act with regard to the issue and use of entry permits appears to be as follows:
A person who is not an Australian citizen enters Australia as a prohibited non-citizen unless he holds an entry permit that is in force
(sub-s.6(1)).
An entry permit may be expressed as a permit to enter Australia, a permit to enter and remain in Australia or a permit to remain in Australia
(sub-s.6(3)).
A temporary entry permit is a permit which authorizes the holder to remain in Australia only for the period specified in the permit
(sub-s.6(6)).
Notwithstanding the heading to s.6 - "Non-citizen not to enter Australia without entry permit" - there is no express provision in the Act stating that a person shall not enter Australia without an entry permit. A person who does so enter as a prohibited non-citizen commits an offence by the act of entry (para.27(1)(a)) and is thereupon liable to arrest and deportation. Section 35 of the Act states that an officer may prevent a person entering Australia where the person would be a prohibited non-citizen upon entry and empowers him to use such force as is necessary for that purpose.
Pursuant to sub-s.6A(1) an entry permit other than a temporary entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is satisfied:
(a) he has been granted territorial asylum in Australia;
(b) he is the spouse, child or aged parent of an Australian citizen, or of the holder of an entry permit that is not a temporary entry permit;
(c) he is the holder of a temporary entry permit which is in force and has the status of refugee;
(d) he is the holder of a temporary entry permit which is in force and is authorized to work in Australia and is not a prescribed non-citizen; or
(e) he is the holder of a temporary entry permit which is in force and there are strong, compassionate and humanitarian grounds for the grant of the full entry permit.
(Sub-ss.6A(1) and 6A(8)).
It should be noted that s.6A is not a source of power for the grant of a permit. Those powers are contained in ss.6 and 7. Section 6A prohibits the exercise of the power in sub-s.6(5) and s.7 unless certain conditions of eligibility are met. (See Minister for Immigration and Ethnic Affairs v. Akbas (1985) 7 FCR 363 per Jenkinson J. at p 373.)
The use in sub-s.6(1) and paras.6A(1)(c), (d), (e) of the additional words "that (or which) is in force" as a qualification of the otherwise adequate phrases "holder of an entry permit" or "holder of a temporary entry permit" may relate to a circumstance such as that created by s.9 where a non-citizen may be the holder of an entry permit that has not been cancelled under sub-s.7(1) and has not expired and on its face is an operative temporary or permanent entry permit but the permit has become of no "force or effect" after the holder left Australia. Express words to like effect are used in respect of the operation of visas and return endorsements. (See sub-s.11A(2)). It is of interest to note that a "permanent" entry permit held by a non-citizen ceases to be of any effect if that person leaves Australia and that that person would be required to request the issue of another entry permit under sub-s.6(2) if he wished to re-enter Australia. The issue of a return endorsement upon a person's departure from Australia would only facilitate his return travel and would not provide a right to re-enter Australia. (See para.11A(1)(b), sub-s.11A(5), and s.11).
A temporary entry permit may be cancelled at any time and upon expiration or cancellation of a temporary entry permit, the person who held that permit becomes a prohibited non-citizen (sub-ss.7(1) and 7(3)). A further entry permit may be granted to a non-citizen while a temporary entry permit is in force or after it has expired or has been cancelled (sub-s.7(2)).
A person who is a prohibited non-citizen ceases to be a prohibited non-citizen if, and when, an entry permit or further entry permit is granted to him and not otherwise (s.10).
A person who is a prohibited non-citizen may be required to leave Australia (s.31A), or may be deported (s.18). A prohibited non-citizen may be arrested (s.38) and so may a deportee (s.39).
Furthermore, a person who becomes a prohibited non-citizen upon the expiration of a temporary entry permit, commits an offence against the Act punishable by imprisonment para.27(1)(ab) although it is a defence to such a prosecution to show that a further entry permit came into force after that person became a prohibited non-citizen (sub-s.27(2A)).
In summary, therefore, the system of issue of entry permits appears to be as follows:
An entry permit may be an "initial" entry permit granted pursuant to s.6 or a further entry permit granted pursuant to s.7.
Entry permits may be either a "permanent" entry permit or a temporary entry permit.
The latter is endorsed with the specified period in which the holder of the permit may remain in Australia.
An "initial" entry permit may be granted upon the arrival of a non-citizen at which time the non-citizen is not a prohibited non-citizen. An "initial" entry permit may be granted after the entry of the non-citizen notwithstanding that he is a prohibited non-citizen (sub-s.6(5)). An officer may offer an "initial" entry permit which becomes a granted permit if the non-citizen consents or may grant an "initial" entry permit to a non-citizen if the non-citizen requests the grant of such a permit (sub-s.6(2)).
If the "initial" entry permit is granted upon the arrival of the non-citizen in Australia, it is in the discretion of the officer as to whether it is a permanent or temporary entry permit. After a non-citizen has entered Australia, the "initial" entry permit may only be a temporary entry permit unless the non-citizen qualifies for the issue of a permanent entry permit under the provisions of paras.6A(1)(a) or (b). (See sub-s.6(5)).
A person graduates from arrival in Australia to entry into Australia by disembarking in Australia from the vessel on which he arrived (para.5(2)(a)) or by leaving the prescribed limits of a proclaimed airport when he arrives in Australia by aircraft. If he arrives in Australia at other than a proclaimed airport, he enters Australia upon disembarking from the aircraft (para.5(2)(b)).
Prior to September 1987 there was no formality required of a non-citizen for the making of a request for the issue of an entry permit. Since that date a non-citizen is required to make his request in writing for the issue of an "initial" entry permit (sub-s.6(2A)) and that request is to be in accordance with the relevant form approved by the Minister. As set out above, however, pursuant to sub-s.6(2), an "initial" entry permit may be granted without the non-citizen making a request for such a grant provided that the non-citizen consents to the grant.
Similarly, since September 1987, a request for the issue of a further entry permit must be in writing in accordance with the relevant form approved by the Minister (sub-s.7(2A)). There is no express provision in s.7 for an offer to grant a further entry permit with the consent of the non-citizen without the need for the delivery of a formal request, unlike sub-s.6(2) relating to the issue of an "initial" entry permit. Notwithstanding the absence of those words, the Minister, or the authorized officer, must hold a discretion to offer a grant of a further entry permit notwithstanding that a formal request for the grant thereof may not have been lodged.
Notwithstanding that the non-citizen may set out grounds upon which the Minister or the authorized officer may act to determine whether the entry permit issued to the non-citizen will be a permanent entry permit rather than a temporary entry permit, the request lodged by the non-citizen under the Act remains a request for a grant of either an "initial" entry permit or a further entry permit and there is no provision for the non-citizen to apply separately for a permanent entry permit or temporary entry permit. The non-citizen who requests the grant of an entry permit and shows grounds why that permit should be a permanent entry permit may nonetheless be offered or granted a temporary entry permit upon consideration of that request and the Minister or his delegate would be obliged to consider what form of entry permit should be granted and not restrict consideration of the request to the grant or refusal of an entry permit that is a permanent entry permit.
Sub-section 7(2) clearly envisages that requests may be lodged for the grant of entry permits which will become operative at a future date, in particular upon expiration of a current temporary entry permit. The section appears to contemplate that such applications would be sequential in nature with the intent that any entry permit granted would become effective upon the expiration of any temporary permit granted pursuant to a prior application.
In the present case the applicant made a request for the issue of a further entry permit pursuant to s.7 and apparently specified grounds that indicated that she sought no more than the issue of a further temporary entry permit. Subsequently, Mrs. McDermott made a request for the issue of a further entry permit describing grounds on which she would seek to persuade the Minister, or the authorized officer,to issue a further entry permit other than a temporary entry permit.
The applicant's request for the grant of a further temporary entry permit was made less than a week before the expiration of the temporary entry permit she then held. Bearing in mind that decisions on such requests can be made on the day of arrival of a non-citizen and therefore the day of request, the time provided by the applicant to the respondent or the authorized officer may not have been unduly short. (See Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263, 279-280.) No doubt consideration of a request that sets out grounds seeking the grant of a "permanent" entry permit may take more time and involve further enquiry and the lodging of such a request within a day or two of expiration of the temporary entry permit then held may, in certain circumstances, be too short a period of time to properly consider the granting of a "permanent" entry permit.
However, in this case the applicant had made a prior request for the grant of a further temporary entry permit and in the circumstances consideration and determination of that request was probably required before the respondent or the authorized officer turned to the subsequent request which sought the grant of a further entry permit in the form of a "permanent" entry permit.
It appears, however, that the authorized officer treated the prior request as having being subsumed in the subsequent request. Indeed, according to the statement of reasons supplied by the respondent's authorized officer who made the decision, the prior application was not "processed". Consideration of the latter request was restricted to a determination of whether the applicant should be granted a "permanent" entry permit. The respondent's authorized officer dealt with the request as if the applicant were the holder of a temporary entry permit then in force and as if the remaining precondition to be considered was whether there were strong compassionate or humanitarian grounds for the grant of a "permanent" entry permit to the applicant.
No doubt the respondent's authorized officer recognised that a permanent entry permit could not be granted after expiration of the temporary entry permit on 31 October 1987 and accepted that it was possible to grant a further temporary entry permit to allow the application for the grant of a "permanent" entry permit to be considered and to determine whether the remaining precondition prescribed by para.6A(1)(e) was satisfied, namely, that there were strong compassionate or humanitarian grounds for the grant of such a permit. This approach was taken by the Minister's authorized officer in Kioa v. West (1985) 159 CLR 550 - see facts recited in the judgment of Mason J. at pp 574-575.
In Kioa v. West, Mason J. referred to the need to satisfy the precondition that an operative temporary entry permit be held and noted the correctness of the delegate's approach to this question:
"Because they did not hold temporary entry permits at the relevant time, s.6A(1) precluded the issue to Mr. and Mrs. Kioa of permanent entry permits on the footing that they satisfied the condition in par.(e). However, the delegate and, it seems, the Department correctly recognized that, if they were first granted further temporary entry permits, they would have been eligible for the grant of permanent entry permits, provided that 'strong compassionate or humanitarian grounds' for the grant of such permits existed." (p582)
In that case the appellant sought review of the decisions not to issue temporary entry permits or permanent entry permits and the decision to deport them.
Having considered on its merits the application for a permanent entry permit and having given reasons for the decision that do not rely upon the applicant's failure to satisfy the precondition of being the holder of a current temporary entry permit at the time of decision, the respondent now contends that the application to review the decision pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 should not proceed because as at 26 November 1987 Mrs. McDermott was not the holder of a current temporary entry permit and could not have been granted a "permanent" entry permit.
In my opinion this contention begs the issue for determination on the application for judicial review.
Counsel for the Minister has referred to decisions of the Full Court of this Court in Minister for Immigration and Ethnic Affairs v. Maitan, Unreported (Federal Court of Australia, Fox, Beaumont and Gummow JJ., 24 February 1988) and in Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177.
But neither of those cases supports the extended propositon now put forward by the Minister.
In Tang v. Minister for Immigration and Ethnic Affairs Davies J. (at p 182) stated that it was not necessary for him to examine the circumstances in which it may be proper for the Minister to grant a temporary entry permit with a view to permitting consideration of compassionate or humanitarian grounds and that that matter may be left for a case in which it was of importance. In Kioa v. West (supra) Mason J. (at p 582) acknowledged that it may be appropriate for such a course to be followed.
There is nothing to the contrary in Maitan v. Minister for Immigration and Ethnic Affairs where a proper determination appears to have been made upon the request for the issue of a temporary entry permit in addition to a determination on the merits of the request for the issue of a permanent entry permit. In that case Fox J. at p.8 of his reasons, and Beaumont and Gummow JJ. at p.8 of their joint reasons, refer to the width of the discretion to grant or to refuse to grant a temporary entry permit, and, on the facts of that case, there was nothing to show that any of the grounds of review available under s.5 of the Administrative Decisions (Judicial Review) Act 1977 would have application to the exercise of that discretion in respect of a refusal to grant a temporary entry permit.
As in Kioa v. West (supra), the application for review in Maitan's Case sought to review both the decision to refuse to grant a temporary entry permit and the decision to refuse to grant a permanent entry permit.
The facts in Maitan's Case were quite different from the agreed facts of this application. In Maitan's Case the appellant had been in blatant breach of the provisions of the Act for several years and held no temporary entry permit at the time he made application for the issue of a further permit.
In the applicant's case she was the holder of a temporary entry permit in force at the time she requested the grant of further entry permits, both temporary and permanent.
In the latter circumstances the respondent and his officer may have been under a duty to deal promptly with the request for the issue of a temporary entry permit bearing in mind that the applicant would commit an offence under s.27 of the Act if her temporary entry permit expired without another permit coming into force on that expiration. In such circumstances, if further time were required for a decision to be made on such an application, it may be expected that consideration would be given to granting a further temporary entry permit for such time as was necessary for a decision to be made. (See sub-s.27(2A)). It may be noted by way of comparison that pursuant to sub-s.27(2AA), a person who is subject to a departure prohibition order is taken not to commit an offence under s.27 if he becomes a prohibited non-citizen by expiration of his temporary entry permit.
Furthermore, in some cases it may be appropriate to grant a further temporary entry permit so that a person who has been denied a "permanent" entry permit may leave of his or her own accord. (See Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 ALR 566 per Fitzgerald J. at p 575.)
No doubt if a request for the grant of a further entry permit is made in good time and the non-citizen contends that the request did not receive due consideration and that his temporary entry permit is being allowed to expire, he may bring an application under s.7 of the Administrative Decisions (Judicial Review) Act 1977 seeking the exercise by the Court of its powers under sub-s.16(2) of the Act. Obviously it would be rare for such an occasion to arise.
In the present application, unlike Maitan's Case, it appears that the decision to refuse to grant a permanent entry permit was the principal decision and any decision to refuse to grant a temporary entry permit was entirely subordinate to and conditioned by the former decision. In fact, the request for the grant of a temporary entry permit was not "processed" pending the making of a decision on the request for the grant of a "permanent" entry permit.
As was stated by Mason J. in Kioa v. West at p 587, the grant of an entry permit is a matter of discretion and an applicant cannot complain if the authorities reject the application because they do not accept, without further notice to the applicant, what is put forward on the applicant's behalf:
"In the ordinary course of the granting or refusing of permits there will be no occasion for the principles of natural justice to be called into play."
This passage was referred to with approval by the Full Court of this Court in Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263 at p 278.
However, it was decided by the majority in Kioa v. West (Mason, Wilson, Brennan and Deane JJ.) that the requirements of natural justice and procedural fairness are not excluded by the Act in relation to the making of decisions and at p.587, Mason J. says as follows:
"But if in fact the decision-maker intends to reject the application ("for the grant of an entry permit") by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." (emphasis added)
(See also Waniewska v. Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284.)
It is apparent on the face of the reasons provided by the decision-maker in the applicant's case that an argument may be raised that such procedural fairness was denied to the applicant in that a particular consideration, personal and extremely prejudicial to her and not disclosed to her, may have been an important consideration in the decision to refuse to grant an entry permit.
That is not to say that such an argument will succeed but the fact that it may be advanced suggests that the real question that should be before this Court is whether the decisions to refuse both requests for the grant of entry permits were subject to the same error and, therefore, susceptible to review under the Administrative Decisions (Judicial Review) Act 1977, the decision on the request for the issue of a temporary entry permit having been conditioned by the decision on the request to issue a "permanent" entry permit.
I am not satisfied that on the facts of this case judicial review of the decision not to grant a "permanent" entry permit could not be undertaken if the application remains in its present form, but in any event the applicant should be given the opportunity to amend her application so that the decisions on both requests for the issue of an entry permit are placed before the Court.
In those circumstances it is unnecessary and inappropriate to answer the preliminary question that has been raised. The answer contended for by the respondent would not inevitably dispose of the proceedings.
I will hear the parties as to any amendments to the application and as to any order for costs.
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