Minister for Immigration and Ethnic Affairs v Akbas, K

[1985] FCA 359

Re: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
And: KEMAL AKBAS (1985) 7 FCR 363
No. V G98 of 1985
Administrative Law - Immigration and Aliens

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Morling(2) and Jenkinson(3) JJ.

CATCHWORDS

Administrative Law - judicial review - migration - application for grant of permanent resident status on strong compassionate and humanitarian grounds - refusal by the Minister to allow review by the Immigration Review Panel - applicant not the holder of a temporary entry permit - whether eligible for consideration under s.6A of the Migration Act - lapse of rights.

Migration Act 1958 ss.6, 6A.

Immigration and Aliens - Prohibited Immigrants - Entry Permits - Refusal of entry permit - Review by Immigration Review Panel - Whether right of review - Whether applicant "eligible for consideration" under provisions dealing with grant of entry permits - Migration Act 1958 (Cth), s 6A(1)(e).

HEADNOTE

Where an application for permanent residence based on compassionate or humanitarian grounds was refused, and the applicant claimed a right to have the decision reviewed by the Immigration Review Panel in reliance on Review Right 4 of the "Twelve Review Rights" (upon which entitlement to reviews by the Panel are based).

Held: The applicant was not "eligible for consideration under the provisions of Section 6A of the Migration Act", within the meaning of Review Right 4, because he was not the holder of a temporary entry permit as required by s 6A(1)(e) of the Migration Act 1958 at the time he applied for review of the decision.

HEARING

Melbourne, 1985, June 19; July 25. #DATE 25:7:1985
APPEAL

Appeal from judgment and orders of Smithers J.

N A Moshinsky, for the applicant.

J D Little (solicitor), for the respondent.

Cur adv vult

Orders below set aside and in lieu thereof order that application be dismissed with costs

Solicitors for the applicant: Australian Government Solicitor.

FPC

ORDER

1. The appeal be allowed with costs.

2. The orders of the learned trial judge be set aside and in lieu thereof the application be dismissed with costs.

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

Appeal allowed with costs

JUDGE1

The history of this appeal and the relevant facts are set out in the reasons for judgment of Morling, J.

The case for Kemal Akbas depended upon the submission that he was entitled to a review by a body set up under administrative arrangements by the Minister, and known as the Immigration Review Panel, of a decision to refuse him permanent resident status.

This entitlement was said to arise under Review Right 4 in a departmental pamphlet, which was in the following terms:-

"Review Right 4 applies to refusal of permanent residence to a person illegally in Australia who is eligible for consideration under the provisions of section 6A of the Migration Act."

I agree with the opinion of Morling J that Akbas was not eligible for consideration under s.6A, with his reasons for that opinion and with his observations upon the provisions in the Review Rights dealing with lapse.

I would allow the appeal with costs, set aside the orders made by the learned trial judge and in lieu thereof order that the application be dismissed with costs.

JUDGE2

This is an appeal from a decision of a judge of the Court setting aside a decision of the appellant Minister to deport the respondent from Australia. The Minister's decision was set aside upon the ground that he failed to take into account a relevant consideration, namely, that the respondent was eligible for consideration by a body known as the Immigration Review Panel.

The facts can be shortly stated. The appellant is a Turkish born citizen and has a wife and son who reside in Turkey. He claims that after he eloped with his wife in 1978 her family threatened to kill him. He was then living with his wife in Ankara, having fled with her to that city from the Kurdish village from which they had eloped. According to the respondent, his wife's brothers traced her to Ankara and took her back to the village. He claims they threatened to kill him and that their threats caused him to leave Turkey and come to Australia. Upon arrival in this country in April 1981 he was given a temporary entry permit. After expiry of the permit the respondent remained illegally in Australia.

On 27 February 1985 the respondent made an application for resident status in Australia. This application was an application under s.6 of the Migration Act 1958 for the grant of an entry permit, as distinct from a temporary entry permit. The application was made, and considered, upon the basis that there were strong compassionate or humanitarian grounds for the grant of an entry permit. The application was refused and on 8 March 1985 the respondent sought a review of this decision by the Immigration Review Panel. The respondent was advised that he had no right of review by the Panel because, so it was asserted, his case did not fall within any one of the classes of cases open to be reviewed by it. Thereafter the Minister ordered that the respondent be deported.

It was conceded before the trial judge that the respondent was not the holder of a temporary entry permit which was in force. It is clear that the Minister made his decision to deport the respondent without taking into account the right of review which he claimed to have. It was the Minister's view, communicated to the respondent's solicitor in a letter of 14 March 1985, that any right of review by the Panel was contingent upon the respondent being eligible for consideration for the grant of resident status under s.6A of the Migration Act. Section 6A relevantly provides as follows:

"6A (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) he has been granted, by instrument under the hand of a Minister, 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;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a proscribed non-citizen; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

In the Minister's view, since the respondent was not the holder of a temporary entry permit which was in force and since his case did not come within paras. (a) or (b) of sub-s.6A(1) he did not fulfil any of the conditions of the sub-section. In particular, his case did not come within para. (e) even if there were strong compassionate or humanitarian grounds for the grant of an entry permit to him, since he was not the holder of a temporary entry permit.

To understand his Honour's decision it is necessary to refer to the nature and constitution of the Immigration Review Panel. The Panel does not have any statutory basis. It is a body set up administratively to advise the Minister on applications made to him from time to time by persons seeking permanent resident status in Australia. For the guidance of persons who wish to have their cases reviewed by the Panel the Minister has issued a document styled "The Review Rights". The substance of this document is set out in the judgment of Jenkinson J. and I need not restate its terms. The document lists what are described as twelve Review Rights. Review Right 4 is critical for present purposes. It is described as applying to "refusal of permanent residence to a person illegally in Australia who is eligible for consideration under the provisions of Section 6A of the Migration Act".

The learned trial judge was of the opinion that the Minister was mistaken in his view that the respondent's case was not eligible for consideration by the Panel. He was of the view that Review Right 4 applies to a person illegally in Australia who does not hold a temporary entry permit. In his opinion, it was within the competence of a person applying for permanent resident status under para. (e) to attach to his application another application for a temporary entry permit. Whether a temporary entry permit would be granted would depend upon whether the applicant was a person having grounds for compassionate administration of the migration law. His Honour was of the view that notwithstanding that the respondent was illegally in Australia and did not hold a temporary entry permit he was a person who was eligible for consideration for the issue of a permanent entry permit under para. (e) if he could establish that his case should be considered on compassionate grounds. He thought that the language of Review Right 4, referring as it does to a person who is "eligible for consideration" was wide enough to include a person such as the applicant whose application for a permanent entry permit might be granted if the Minister decided first to grant him a temporary entry permit. He thought a distinction should be drawn between a person who is eligible for consideration under the provisions of s.6A and a person who is eligible for the grant of an entry permit.

I am unable to share his Honour's view as to the meaning of Review Right 4. The construction adopted by his Honour leads to the result that the words "who is eligible for consideration under the provisions of Section 6A" mean "who is eligible, or may become eligible, for consideration under the provisions of Section 6A". I do not think the words of Review Right 4 are capable of bearing that meaning. In my opinion Review Right 4 applies to persons who are eligible for consideration under s.6A as permanent residents. Their eligibility for consideration must exist at the time they seek to have their cases reviewed. If they do not satisfy one of the grounds of eligibility referred to in sub-s.6A(1) they are not "eligible for consideration" in terms of the Review Right. It is not sufficient that, should the Minister be persuaded at some future time to grant them temporary entry permits they would then become eligible for consideration.

Review Right 4 refers, in my opinion, only to persons who are illegally in Australia and whose applications for permanent resident status have been refused notwithstanding that they hold one of the qualifications for eligibility referred to in sub-s.6A(1). Hence a person who does not hold a temporary permit is only "eligible for consideration" if he can bring his case within paras. (a) or (b) of sub-s.6A(1). The respondent is not such a person and accordingly the Minister's decision to deport him was not made under any misconception as to the respondent's right to have his case reviewed by the Panel.

It is not to the point that had the Minister decided that there were strong compassionate or humanitarian grounds for allowing the respondent to remain in Australia he could have granted the respondent a temporary entry permit which in turn would have made the respondent "eligible for consideration under the provisions of Section 6A" within the meaning of Review Right 4. The existence of such strong and compassionate grounds no doubt would make the respondent eligible for consideration for the grant of a temporary entry permit. But that is not to say that they would make him eligible for consideration under s.6A, which does not deal with the grant of such permits.

During the course of argument the court drew the attention of the parties to the provision in the Review Rights dealing with lapse of rights. The attention of the learned trial judge was not directed to this provision. According to its terms immediately the respondent was apprehended as a prohibited non-citizen any previous Review Rights he may have had, but failed to exercise, lapsed. The respondent was apprehended on 21 February 1985. Prior to that date he had not exercised any Review Right that he may have had. Counsel for the respondent argued that this provision did not affect his client, since the Review Right which his client enjoyed did not come into existence until after he had been apprehended. Since counsel for the appellant was instructed not to rely upon this point and it was not argued it is undesirable to decide it. However I think it is a serious question whether, on the assumption that the respondent was ever eligible for consideration under the provisions of s.6A, he retained any right to have his case reviewed by the Panel. I think there is much to be said for the view that the reference to "previous Review Rights" is a reference to review rights which a person may otherwise have enjoyed and that, on the facts of the present case, all such rights (if they ever existed) lapsed as from the date when the respondent was apprehended as a prohibited non-citizen. The wording of the provision in the Review Rights dealing with lapse of rights appears to reflect an understandable Ministerial policy of depriving persons who are illegally in Australia of the right to approach the Panel if they put the government to the expense and trouble of apprehending them.

Counsel for the appellant submitted that even if the Minister had decided to deport the respondent in the mistaken belief that the respondent did not have a right to have his case reviewed by the Panel, his decision would not have been open to attack under the Administrative Decisions (Judicial Review) Act 1977. He argued that a right of review by the Immigration Review Panel is not a consideration which the Minister is bound to take into account before making a decision to deport. The absence of any statutory basis for the Panel's existence and of any obligation on the Minister to give any weight to the Panel's recommendations add weight to its submission. However, it is unnecessary to decide the point for the purpose of determining the appeal.

For the reasons I have given I would allow the appeal with costs, set aside the orders made by the learned trial judge and in lieu thereof order that the application be dismissed with costs.

JUDGE3

Appeal against an order of this court that a deportation order be set aside.

The respondent is a Turkish citizen who first entered Australia in about April 1981. Before 1982 he had become a "prohibited non-citizen", within the meaning of that expression in the Migration Act 1958, but he has remained in this country. Pursuant to the provisions of s.38 of that Act he was arrested on 21 February 1985. By letter dated 26 February 1985 from his solicitor to the Department of which the appellant is the Minister of State ("the Department") the respondent sought the right to reside permanently in this country. One means of achieving what the appellant sought is by grant to him of an "entry permit", within the meaning which sections 6 and 6A(8) of the Migration Act 1958 assign to that expression in the latter section. An entry permit that is intended to operate as a temporary entry permit is expressed to authorize the person to whom it relates to remain in Australia for a specified period only (s.6(6)), and is called a temporary entry permit (s.5(1)). A temporary entry permit may be granted to a prohibited non-citizen (ss.6(1), 6(5) and 7), but an entry permit other than a temporary entry permit may not be granted to a non-citizen after his entry into Australia, unless one of certain specified conditions is fulfilled in respect of him (ss.6A(1) and 6A(8)). At all material times only one of those specified conditions could have been fulfilled in respect of the respondent. It is the condition specified in s.6A(1)(e): "he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit", other than a temporary entry permit, to him. It is true that the condition has not been fulfilled in respect of the respondent at any time since he became a prohibited non-citizen in 1981, in consequence of the expiration of the period for which he had been authorised to remain in Australia. But after the expiration of a temporary entry permit, such as the respondent held in 1981, a further temporary entry permit may be granted at the request of the prohibited non-citizen (s.7). On 26 February 1985 the respondent made such a request. If a further temporary entry permit had been granted in response to that request and if there had then been "strong compassionate grounds for the grant" to him of an entry permit other than a temporary entry permit, the condition specified in s.6A(1)(e) would have been fulfilled. On the same day, 26 February, 1985, the respondent requested the Department that he be granted the status of permanent resident. Those terms and conceptions ("status", "permanent resident") are current in the administrative practices and in the published documents of the Department. If the request were granted, that would be done by the grant of an entry permit, other than a temporary entry permit, but after the grant of a temporary entry permit, so that the condition specified in s.6A(1)(e) might be fulfilled.

On 7 March 1985 the respondent's solicitor was informed by an officer of the Department that the respondent's request that he be granted the status of permanent resident was denied. On 8 March 1985 a request was made by the respondent for review of the decision to deny him permanent resident status. That was an attempt on his part to have his request for permanent resident status considered by a group of persons known as the Immigration Review Panel in accordance with administrative arrangements established by a former Minister of State for Immigration and Ethnic Affairs and continued by the appellant Minister.

The powers and functions conferred by the Migration Act 1958 and by regulations made under that Act are conferred either on the Minister, who is empowered by the Act to delegate some of his powers and functions to officers of the Department, or on such officers. The functions performed by the group of persons known as the Immigration Review Panel are not conferred by any provision of an Act or a regulation; nor have those functions been conferred by the Minister in exercise of any power derived by him from the Migration Act or from any regulation made under that Act. Under administrative arrangements ordained by the appellant the persons known as the Immigration Review Panel consider decisions of certain kinds which have been taken by Departmental officers in exercise of functions conferred on the officers by, or by virtue of delegations pursuant to, the Migration Act 1958 or the regulations thereunder or certain other statutory provisions for the administration of which the appellant Minister is responsible. Those persons report their opinion to the Minister as to whether a different decision ought to be made. When they recommend a different decision, the appellant may take action to bring about the recommended result.

There was no testimony concerning the Immigration Review Panel. What was to be known about the Panel and its functions had to be derived by inference from letters and other documents which had been received in evidence, or derived from statements by either counsel in which the other counsel acquiesced. It was not in dispute, first, that on 8 March 1985 the appellant sought to have the Panel consider the decision that he be not granted the status of permanent resident; second, that the Panel did not consider that decision; and, third, that when the appellant made an order, on or about 14 March 1985, that the respondent be deported his opinion was that that decision was not one which the Panel should consider and that there had not been a representation to the public or to the appellant that a decision of that kind would, on request, be considered by the Panel.

As virtually nothing is disclosed by the evidence concerning the administrative arrangements with respect to the Panel, the court is not able to form any view about the first of those two opinions. It was the correctness of the second opinion which the evidence and the submissions of counsel for the respondent called into question. That was done by analysing the terms of a pamphlet published by the Department and entitled "The Review Rights" in order to determine whether the decision to deny the respondent permanent resident status was a decision of a description represented in the pamphlet to be reviewable by the Immigration Review Panel. Counsel for the appellant Minister denied, but counsel for the respondent contended, that the decision was of that description.

It was the appellant's decision to order the deportation of the respondent which was the subject of the application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977. The grounds of the application were stated thus:

"(a) the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that it failed to take a relevant consideration into account in the exercise of the power, namely, that the applicant had a right of review by the Immigration Review Panel of an application for permanent residence and that the review was pending at the time of the making of the decision,

(b) the decision involved an error of law, namely, that the applicant did not have the said right of review,

(c) the procedures required by law to be observed in connection with the making of the decision were not observed, namely the procedures for review by the Immigration Review Panel of the application of the applicant for permanent residence."

What has already been written shows that those grounds are open to a number of questions. But it may be convenient first to consider whether the pamphlet did represent to be reviewable by the Panel a decision of the kind which the respondent sought to have so reviewed.

The sub-title of the pamphlet is "How to Prepare Your Case". The text commences thus:

"The purpose of the 'Request for Review' form is to help you to present your case as fully and as favourably as possible.

Your request will be investigated on behalf of the Minister for Immigration and Ethnic Affairs by the Immigration Review Panel. The Panel, which is quite separate from the departmental officers who made the original decision, reports directly to the Minister.

It will be necessary for you to show that either:

(1) the reasons which gave rise to refusal no longer apply - or perhaps never did apply - to your case, or

(2) there are such strong compassionate or humanitarian considerations in your case that the normal requirements should be especially relaxed in your favour.

First, make certain that the case comes within one of the twelve Review Rights announced by the Minister on 18 January 1982.

Second, make certain that the last decision about the case was made by the Department on or after 18 January 1982.

Third, make certain that you are personally entitled to seek a review of the case.

WHAT CASES ARE COVERED BY THE REVIEW RIGHTS?

If the case comes within one of the following broad categories, check its eligibility under the Review Right shown.

A. Refusal of migrant entry of a sponsored or nominated relative (see Review Rights 1 and 2).

B. Refusal of permanent residence to a person already in Australia (see Review Rights 3 and 4)

C. Refusal or cancellation of a Return Endorsement (see Review Right 5).

D. Grant of only temporary residence to a person who arrived with a migrant visa (i.e. for permanent residence) (see Review Right 6).

E. Refusal of extension of temporary residence (see Review Rights 7-9).

F. Refusal to grant citizenship (see Review Right 10).

G. Liability to deportation as a prohibited immigrant (see Review Rights 11 and 12).

WHO CAN SEEK A REVIEW?

In sponsorship and nomination cases (Review Rights 1 and 2) a review can be sought ONLY by the sponsor or nominator, or by a SOLE AGENT appointed to act on his or her behalf.

In addition, there must be evidence that the relative overseas wishes a review.

In all other cases (Review Rights 3-12) a review can be sought ONLY by the principal person to whom the review applies, or by a SOLE AGENT appointed to act on his or her behalf.

Should you consider appointing an agent, it is in your interest to establish what fees, if any, may be charged by the agent for this. Any such fee and other associated costs are your responsibility.

THE COMMONWEALTH GOVERNMENT DOES NOT CHARGE A FEE FOR THE REVIEW OF CASES UNDER THESE ARRANGEMENTS.

THE TWELVE REVIEW RIGHTS

Review Right 1 applies to a refusal by the Department of Immigration and Ethnic Affairs, either in Australia or overseas, to allow the migrant entry of a relative sponsored or nominated by an Australian citizen or legal permanent resident.

'Relative' means a spouse, child, parent, brother, sister, fiance(e) and includes step-children, step-parents, step-brothers and step-sisters.

Review Right 2 applies to refusal by the Department of Immigration and Ethnic Affairs to accept migrant entry sponsorship or nomination of a relative overseas by a person eligible to sponsor or nominate that relative.

'Relative' means a spouse, child, parent, brother, sister, fiance(e) and includes step-children, step-parents, step-brothers and step-sisters.

Review Right 3 applies to refusal of permanent residence to a person legally in Australia who is eligible for consideration under the provisions of Section 6A of the Migration Act.

Review Right 4 applies to refusal of permanent residence to a person illegally in Australia who is eligible for consideration under the provisions of Section 6A of the Migration Act.

Review Right 5 applies to refusal to issue a Return Endorsement, either in Australia or overseas, to a permanent resident, or the cancellation of his or her Return Endorsement.

Review Right 6 applies to a person arriving in Australia with a migrant visa who is granted temporary residence instead of permanent residence.

Review Right 7 applies to refusal to extend, or cancellation of, the temporary entry permit of a person legally in Australia on business, or for pre-arranged medical treatment, or visiting relatives.

'Relative' means a spouse, child, parent, brother, sister, fiance(e) and includes step-children, step-parents, step-brothers and step-sisters.

Review Right 8 applies to refusal to extend, or cancellation of, the temporary entry permit of a person legally in Australia with permission to work (excluding entertainers, for whom there are separate review arrangements).

Review Right 9 applies to refusal to extend, or cancellation of, the temporary entry permit of a person legally in Australia as a student.

Review Right 10 applies to refusal to grant Australian citizenship (excluding cases where, because of refusal on security grounds, other review arrangements apply).

Review Right 11 applies to a person who, having been located as a prohibited immigrant (excepting pursuant to Section 16(1) of the Migration Act - see Review Right 12), and as such is deportable under Section 18 of the Migration Act 1958, is found to be eligible for consideration for resident status under Section 6A(1)(b) of the Migration Act.

Review Right 12 applies to a person who, having been admitted to Australia in possession of a migrant visa, is subsequently found to be a prohibited immigrant pursuant to Section 16(1) of the Migration Act and is therefore liable to deportation under Section 18 of the said Act; such a person is required to seek a specially endorsed entry permit as required by Section 16 of the Act.

NOTE: Review Rights 11 and 12 do NOT apply where the case has been considered under Review Rights 3 or 4 UNLESS there has been a proven material change in circumstances.

CONCURRENT REVIEW RIGHTS

If a person has more than one Review Right, they must be exercised concurrently. If not, the unused Review Right lapses.

UNUSED REVIEW RIGHTS CAN LAPSE

Immediately a person is either apprehended as a prohibited immigrant or is ordered deported under the Migration Act, any previous Review Rights he or she may have had, but failed to exercise, lapse.

He or she may, however, still have a right of review under either Review Right 11 or Review Right 12.

WHEN THE MINISTER HAS COMPLETED HIS REVIEW AND CONVEYED THIS DECISION THERE IS NO FURTHER RIGHT OF MINISTERIAL REVIEW UNDER THESE ARRANGEMENTS."

There follow detailed explanations of the Departmental form to which reference is made in the pamphlet as the "Request for Review". The pamphlet concludes with a statement that "Requests for Review" should be addressed to the Minister for Immigration and Ethnic Affairs at a postal box number in the Australian Capital Territory.

It was submitted on the respondent's behalf that the text I have quoted represented that what is called "Review Right 4" was available to the respondent. It was common ground that he had been refused permanent residence and that he was illegally in Australia. But the parties were in dispute as to whether he was "eligible for consideration under the provisions of s.6A of the Migration Act". For present purposes sub-sections (1) and (8) of that section should be set out:

"(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -
(a) he has been granted, by instrument under the hand of a Minister, 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;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, 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 or humanitarian grounds for the grant of an entry permit to him.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this section, a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit."

It was s.6A(1)(e) upon which the respondent's application for the grant of an entry permit other than a temporary entry permit - and by that grant the achievement of permanent resident status - was grounded. It was not submitted on behalf of the appellant that the lack of "strong compassionate or humanitarian grounds for the grant" of such an entry permit made the respondent ineligible for consideration, although the Departmental decision not to grant him such an entry permit had been based upon the conclusion that he did lack such grounds. He was ineligible for consideration, it was submitted on behalf of the appellant, because he was not "the holder of a temporary entry permit which is in force."

The respondent's answer to that submission proceeded by the following steps. First, it is established that in considering whether or not to order, in exercise of the power conferred by s.18 of the Migration Act, that a prohibited non-citizen be deported, the person making the decision (whether the Minister or one of his delegates) is required by law to consider any information brought to his attention which would suggest that the prohibited non-citizen ought not to be deported, but ought to be allowed to remain in Australia. (See Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 A.L.R. 566.) When a decision is made that the prohibited non-citizen ought not to be deported, but should be allowed to remain in Australia as a permanent resident, for the reason that there are strong compassionate or humanitarian grounds for taking that course, a temporary entry permit is first granted, so that the requirements of s.6A(1)(e) may be satisfied. Permanent resident status is then conferred by the grant of an entry permit other than a temporary entry permit. It follows, the submission concludes, that although a prohibited non-citizen (a person by definition not the holder of any kind of entry permit which is in force) does not fulfil the condition specified in s.6A(1)(e), he is a person correctly described as "eligible for consideration under" that provision of s.6A, and therefore within the description in the pamphlet under the sub-heading "Review Right 4."

Those submissions on behalf of the respondent were accepted on the hearing of the application for an order of review. The appellant having made his decision to deport the respondent in the belief that the pamphlet did not represent the respondent to be within the description "eligible for consideration under the provisions of Section 6A", it was ordered that the deportation order be set aside and it was further ordered:

"The matter be referred back to the Minister to reconsider in the light of the fact that the applicant was eligible for consideration by the Immigration Review Panel in accordance with the request made by the applicant."

It will be observed that the words under the sub-title "Review Right 4" are apt to comprehend a person who satisfies the condition specified in s.6A(1)(b). That paragraph does not include any requirement that the non-citizen be the holder of a temporary entry permit which is in force, or that his presence in Australia be not illegal. It will be observed also that the author of the pamphlet has striven for precision of language to achieve accurate definition of what are called "The Twelve Review Rights". Further, it is to be borne in mind that no provision of s.6A confers a power to grant an entry permit : the power is conferred by ss. 6 and 7. Section 6A prohibits the grant to a non-citizen of an entry permit of a particular description - an entry permit other than a temporary entry permit - unless certain conditions are fulfilled in respect of that non-citizen. Each of the conditions specified in s.6A(1) may be described, in normal English usage, as a condition of eligibility for consideration as a permanent resident. It is in my opinion to eligibility for consideration as a permanent resident (or for permanent residence status) that the words "eligible for consideration" refer. And the provisions of s.6A as the source of the criteria of that eligibility, not as the source of the authority to give that consideration, are indicated by the phrase "under the provisions of Section 6A of the Migration Act", in my opinion. The sentence in the pamphlet is in my opinion to be understood as asserting that "Review Right 4" applies to refusal of permanent residence to a person illegally in Australia who is eligible, under the provisions of s.6A, for consideration for the grant of permanent residence. It might perhaps be not a misuse of language to say that a prohibited non-citizen is eligible for consideration for permanent resident status, by reason of the circumstance that a person exercising the power conferred by s.18 of the Migration Act to decide whether or not he should be deported is required to accord him that consideration if the information available to that person suggests that he might desire, and might be granted, that status. But to attribute eligibility by reference to that circumstance is not to concede that there is eligibility "under" s.6A. On the contrary, the prohibited non-citizen who might be described as eligible by reference to that circumstance will be ineligible "under" s.6A unless it is paragraph (a) or (b) of sub-section (1) which grounds his eligibility under that section. Paradoxically, the person deciding whether or not to order deportation may have the power and the duty to consider whether permanent residence status should be granted to someone not then eligible, according to the conditions prescribed by s.6A, for that grant. But in my opinion "Review Right 4" does not duplicate the paradox. In my opinion the sentence in the pamphlet under consideration was not misunderstood by the appellant when he ordered the respondent's deportation. Neither the pamphlet nor any other circumstances proved in evidence conferred on the respondent any "right" to consideration of his case by the Immigration Review Panel, in my opinion. No statement in the pamphlet represented that he did have such a right, or excited a reasonable expectation that his case would be reviewed by the Panel, in my opinion. I would allow the appeal and order that the application for an order of review be dismissed.