Minister for Immigration, Local Government and Ethnic Affairs v Buksh
[1992] FCA 111
•13 MARCH 1992
Re: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMNENT AND ETHNIC AFFAIRS;
REGIONAL DIRECTOR, SOUTH WESTERN REGION, DEPARTMENT OF IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
And: FAROUK MOHAMMED BUKSH
No. G489 of 1991
FED No. 111
Administrative Law
(1992) 26 ALD 399 (extracts)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Beaumont(1) and O'Loughlin(1) JJ.
CATCHWORDS
Administrative Law - Judicial review - Immigration - Illegal entrant - Application for temporary entry permit as precursor to application for permanent resident status - Application refused - Whether duty to advise applicant as to class of entry permit that should be applied for - Whether applicant qualified for a class of entry permit other than that applied for.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Migration Act 1958 (Cth), ss.33, 34, 47
Migration Regulations, regs. 21, 22, 24, 29, 34A, 35AA, 42, 129, 131, Schedules 3 and 5.
Elbourne v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211
HEARING
SYDNEY
#DATE 13:3:1992
Counsel for the appellants : Mr P. Roberts
Solicitors for the appellants : Australian Government Solicitor
Counsel for the respondent : Mr D.M. Yates and Mr J.T. Svehla
Solicitors for the respondent : Elsworthy Jones
ORDER
The appeal be allowed.
The judgment appealed from be set aside and in lieu thereof it be ordered that the application be dismissed with costs.
The respondent pay the appellants' costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The Minister of State for Immigration, Local Government and Ethnic Affairs and the Regional Director, South Western Region, Department of Immigration, Local Government and Ethnic Affairs ("the appellants") have appealed from the judgment of a single judge of the Court given on 2 August 1991 upon an application by Farouk Mohammed Buksh ("the respondent") for an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The decision under review was described in the application as a decision "to reject the (respondent's) application for a Temporary Entry Permit". It appears that there were, in fact, two decisions made under the Migration Act 1958 (Cth) ("the Act") - one refusing the grant of an Extended Eligibility Temporary Entry Permit (EETEP) Class 824, the other refusing a Processing Entry Permit (PEP) Class 825. Those decisions were made on 21 August 1990 and notified to the respondent on 30 August 1990. The learned primary judge set aside those decisions and ordered that the matter be remitted to the appellants to be dealt with in accordance with his Honour's reasons for judgment.
The respondent is a Fijian national of Indian ethnic origin who was born on 17 September 1951. He arrived in Australia on 19 November 1987, travelling on a business visitor visa. On arrival, he was granted a temporary entry permit for a period of 1 month. Although he thereafter remained in Australia, no further entry permit was granted to him and he, thus, became a prohibited non-citizen or, in the language of the legislation in force since 19 December 1989, an illegal entrant and liable to deportation. A brother and sister of the respondent are Australian citizens and reside in Australia. It appears his mother and two other siblings live in Fiji.
On 15 February 1990, the respondent lodged with the Department of Immigration, Local Government and Ethnic Affairs ("the Department") a completed application form entitled "Application for an Extended Eligibility Temporary Entry Permit", that application relating to himself, his wife and two infant children, and a further application form entitled "Application for a Processing Entry Permit". The former application form was accompanied by a document entitled "For Applicants Applying for an Extended Eligibility Temporary Entry Permit on the Basis of Other Prescribed Circumstances".
The proceedings have been conducted on the basis that the relevant provisions of the Act and of the Migration Regulations made thereunder were those relating to the issue of entry permits as in force on 15 February 1990, the date when the applications were lodged. It, therefore, becomes necessary to refer to certain of those provisions. The relevant provisions of the Act were contained in Division 3 of Part 2. Section 33 within that Division provided, inter alia, that the regulations (made under the power conferred by s.181) might make provision in relation to the granting and refusal of entry permits, including the granting of entry permits subject to conditions or subject to a limitation as to the time the holder was authorised to remain in Australia (s.33(1)(a)) and in relation to the effect and operation of entry permits (s.33(1)(c)). It was also provided that the regulations might make provision for different classes of entry permits (s.33(2)(a)) and might provide that, subject to certain sections not material for present purposes, a person was entitled to be granted an entry permit of a particular class if that person satisfied all the prescribed criteria in relation to that class (s.33(2)(b)). Section 33(4), so far as relevant, provided:
"(4) The conditions subject to which temporary entry permits may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:
(a) the condition that the temporary entry permit will be taken not to be a valid temporary entry permit for the purposes of section 47;
(b) ....; and
(c) ...."
Section 34 provided:
"34. (1) This section applies where, and only where:
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."
By virtue of s.47(1), a provision also within Division 3 of Part 2 of the Act, a permanent entry permit was not to be granted to a non-citizen after entry into Australia unless at least one of the lettered paragraphs in that sub-section applied to the non-citizen. Relevantly for present purposes, a permanent entry permit could not be granted to a person in the position of the applicant unless he were the holder of a "valid temporary entry permit", an expression which, for the purposes only of s.47(1), did not include a temporary entry permit granted subject to the condition set out in s.33(4)(a) (see s.47(7)).
As at the date of the lodging of the applications, the Migration Regulations provided, in reg.22, that, where an applicant applied for an entry permit after entering Australia, the application was in accordance with the regulations if the application was in accordance with a form approved by the Minister, the relevant fee had been paid and the applicant produced to an officer the passport or other document produced by the applicant for the purposes of entry into Australia. It was provided by reg.34A that, unless the regulations otherwise provided, an applicant for an entry permit had to satisfy the prescribed criteria in relation to the relevant class of entry permits (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time. Regulation 42(1) provided that, subject to ss.40 and 45 of the Act (sections which are not presently relevant) a person was entitled to be granted an entry permit of a class specified in the regulations if the person satisfied the prescribed criteria in relation to that class of entry permits.
Regulation 21 provided that, for the purposes of s.33(2)(a) of the Act, the classes of entry permits were the classes specified in Column 2 in Schedule 3 and in Division 4, 5 and 6 respectively of Part 3 of the regulations. The regulations prescribed criteria in respect of various classes of entry permits. Division 4 of Part 3 (which commenced with reg.108) prescribed criteria in relation to entry permits in certain special cases, Division 5 of Part 3 (which commenced with reg.120) prescribed criteria in relation to temporary entry permits granted only in Australia and Division 6 of Part 3 (which commenced with reg.133) prescribed criteria in relation to certain classes of permanent entry permits granted only after entry to Australia.
Schedule 3 to the regulations consisted of 3 Parts. Part 1 prescribed classes of entry permits to which no additional prescribed criteria applied, Part 2 prescribed classes of entry permits to which additional criteria applied and Part 3 prescribed certain further classes of entry permits. Included in the classes of entry permits specified in Column 2 in Part 3 of Schedule 3 were the classes "extended eligibility (other)" which was identified by the item number 26 and assigned the code number 824 and the class "processing" identified by the item number 22 and assigned the code number 825. By virtue of the provisions of reg.24(2), an entry permit specified in any of the items 23 to 27 (inclusive) in Part 3 of Schedule 3 was not to be granted as a permanent entry permit.
Regulation 129 prescribed criteria in relation to an extended eligibility (other) entry permit. It is sufficient for present purposes to note that one of the criteria so prescribed (see reg.129(a)(iii)) was that, after the arrival of the applicant in Australia, significant changes, involving significant repression of a political, social, religious or ethnic group or body of which the applicant was a member had taken place in the applicant's usual country of residence and had been specified by the Minister by notice published in the Commonwealth of Australia Gazette as such significant changes with the result that there was a substantial probability that the applicant personally would suffer serious and lasting consequences. In addition, it was necessary to establish that permanent settlement in Australia was the most appropriate course for the applicant; that there was not a country (other than the country in which the applicant was resident) in which the applicant was entitled to reside; and that the applicant satisfied public interest criteria, as applicable, and the prescribed health criteria in item 9 in Schedule 1.
Regulation 131 prescribed criteria in relation to a processing entry permit. Where an applicant was applying for a temporary entry permit of another class, those criteria (reg.131(a)) were -
"(i) on the day of the application, the applicant was the
holder of a valid entry visa having effect as a temporary entry permit, or a valid temporary entry permit;
(ii) after that day and before the application has been
determined, the entry visa or temporary entry permit has expired;
(iii) the Minister is satisfied that it would be
unreasonable to require the applicant to leave Australia before the application is determined."
Other criteria were specified where the entry permit for which the applicant was applying was a permanent entry permit (reg.131(b)).
For reasons which will become apparent, it should also be noted that Part 1 of Schedule 3 to the regulations prescribed 55 classes of entry permits identified by the item numbers 1 to 55. Particular reference should be made to the class "family relationship", being item 23, and the class "close family visitor", being item 46. Regulation 24(2), to which some reference has already been made, provided that an entry permit specified in any of the items 13 to 50 inclusive in Part 1 in Schedule 3 was not to be granted as a permanent entry permit. That regulation also provided that an entry permit specified in items 1 to 12 inclusive and item 25 in Part 1 in Schedule 3 and items 51 to 55 inclusive in that Part was not to be granted except as a permanent entry permit.
Regulation 29 provided:
"29. (1) An entry permit of a class referred to in Column 2 of an item in Schedule 5 must not be granted unless granted subject to the condition referred to in Column 3 of that item.
(2) In Schedule 5 a class of entry permits is referred to by the item number specified in relation to that class of entry permits in Column 1 in Part 1 in Schedule 3."
Item 1 in Schedule 5 provided that an entry permit of any of the classes of entry permits identified as items 14 to 28 (inclusive) and 30 to 50 (inclusive) in Column 1 in Part 1 in Schedule 3 was to be subject to a mandatory condition being the condition referred to in s.33(4)(a) of the Act, that is to say, the condition that the temporary entry permit was to be taken not to be a valid temporary entry permit for the purposes of s.47 of the Act.
It is also necessary to refer to reg.35AA. That regulation was inserted by Statutory Rules 1990 No.1 which were notified in the Commonwealth of Australia Gazette on 15 January 1990. Regulation 35AA was, by reg.1 of those Statutory Rules, deemed to have commenced on 19 December 1989. So far as material for present purposes, reg.35AA(1) provided:
"35AA. (1) The Minister may, subject to subregulation (2) and regulation 25, but in spite of any other provision of these Regulations, grant a temporary entry permit to a person who is an illegal entrant if:
(a) ....
(b) in the case of a person who entered Australia before 19 December 1989, not being a person referred to in paragraph (a):
(i) the person applies for the entry permit not later than 16 February 1990; and
(ii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criterion that the person is the holder of a valid temporary entry permit); and
(iii) the Minister is satisfied that there are compelling reasons for granting the entry permit; or
(c) ...."
It may be accepted that the respondent is not a person referred to in reg.35AA(1)(a). It is unnecessary for present purposes to refer to reg.35AA(2) or reg.25. Regulation 35AA was amended (see Statutory Rules 1990 No.34) in a number of respects with effect from 20 February 1990. As a consequence of one of those amendments, par.(1)(b)(ii) thereafter read:
"(ii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant)."
Before the primary judge - and, again, on the hearing of this appeal - it was conceded by counsel appearing on his behalf that the respondent did not satisfy the prescribed criteria for the grant of an extended eligibility (other) temporary entry permit if only because there had not been published in the Commonwealth of Australia Gazette, in relation to Fiji, a notice of the kind necessary to satisfy the relevant criterion specified in reg.129. It was further conceded that, unless the Minister was required to consider the respondent's eligibility for an entry permit of a class other than an extended eligibility (other) temporary entry permit, there was no basis, once the application for a permit of the latter class had been refused, upon which the respondent could have been granted a processing entry permit.
Notwithstanding these concessions, the primary judge set aside the decisions refusing the applications for an extended eligibility (other) temporary entry permit and a processing entry permit. His Honour did so on the following grounds:
(a) To have supplied the respondent with forms quite inappropriate for his circumstances, intentions and desires, to have required him to complete and submit them and to have extracted from him one or more fees on their lodgment manifested a breach of the Department's duty to take reasonable care to give correct information and resulted in the decisions under review being infected with the taint of illegality referred to in various provisions of s.5 of the Judicial Review Act;
(b) The failure of the Department to consider the respondent's eligibility for an entry permit under reg.35AA and either provide him with the appropriate form on which to apply or advise him of his right to apply under that provision denied him the procedural fairness to which he was entitled or represented a failure to take into account a relevant consideration.
The ground upon which the application for the grant of an extended eligibility temporary entry permit was made appears from the printed form headed "For Applicants Applying for an Extended Eligibility Temporary Entry Permit on the Basis of Other Prescribed Circumstances". That form set out three grounds upon which the application might be made with provision for the applicant to indicate on which of those grounds he relied. It may be supposed that the grounds there set out were intended to mirror the criteria specified in reg.129(a) but a comparison of the language of the form and that of the regulation indicates some disconformity. The respondent indicated by a suitable notation on the form that he was relying on the ground which was expressed in the following terms:
"Since my arrival in Australia, a political, social, religious or ethnic group to which I belong to (sic) in my usual country of residence has become subject to significant policy changes involving repression or significant restrictions."
The form also contained the following:
"Please ensure that you have identified all grounds on which you think you are eligible to receive an Extended Eligibility Temporary Entry Permit because:
. you can't be approved for a particular class of entry permit if you do not apply for it
. if this application is rejected, you may only be able to apply again if circumstances have changed (i.e. you may not be able to apply on grounds that you could have stated but failed to state in this application)."
The only evidence before the primary judge concerning the lodging of the applications - and that evidence was sparse indeed - was that given by the respondent in an affidavit sworn by him on 21 January 1991 and orally at the hearing. He said that in September 1989 he attended the office at Bankstown, New South Wales of the Department and spoke to an officer at the counter. According to the respondent, he said words to the effect: "Can I have the form for the Amnesty thing for illegal immigrants?" He said he was given three different types of forms but no guidance as to which form to use. According to his oral evidence, those forms were the three forms comprising the application for an extended eligibility temporary entry permit. He further said that he took the forms back to the Department on 15 February 1990 and spoke to an officer at the counter. According to the respondent's affidavit he was told that the original forms he had been given were wrong and he was given a form for an application on humanitarian grounds. In his oral evidence, however, the applicant identified the application for a processing entry permit as the form he was given on that occasion.
In cross-examination, the respondent agreed that since he entered Australia in 1987 he had made a number of applications to remain permanently in Australia. He also agreed that, when he completed the forms lodged on 15 February 1990, it was his desire to remain permanently in Australia and that that was the reason why he completed the forms and lodged them with the Department. He further agreed that it was still his desire to remain permanently in Australia. The primary judge found that it was always the respondent's intention to seek permanent residence in Australia for himself and his family and that the appellants had always assumed and accepted that that was the respondent's intention. The evidence given by the respondent and the statements contained in the application for an extended eligibility temporary entry permit, including the documents accompanying that application, clearly support the finding that the respondent was seeking permanent residence in Australia and negative any suggestion that what he was seeking was permission to stay in Australia for a limited period. We are unable to accept the submission by counsel for the respondent that the respondent's intention as disclosed by the evidence was to apply for any class of entry permit, either temporary or permanent, to which he might be entitled.
As appears from what has already been said, there was no evidence before the primary judge as to the circumstances in which the respondent decided that he should seek to alter his status from a person who was an illegal entrant to a person with permanent resident status. In particular, there was no evidence, beyond his statement that he requested an officer of the Department to furnish him with "the form for the Amnesty thing for illegal immigrants", as to what was said in any conversation he may have had with any such officer. There is, thus, no satisfactory basis upon which to conclude that the officer gave incorrect or inadequate advice to the respondent concerning the course which he should follow if he were to have the Minister or his delegate consider the question whether he was entitled to permanent resident status. In this regard we agree with what was said by Davies J. when considering a similar question in Elbourne v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211. At p 212, his Honour said:
"In considering this submission, it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed. But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made. Indeed, s.34 of the Act provides that a person making an application for an entry permit shall make application for an entry permit of a particular class in accordance with the regulations and, until that has been done, the Minister 'is not required to consider an application at all'."
To be eligible for the grant of permanent resident status, it was necessary, as the primary judge accepted, for the respondent to satisfy the requirement (see s.47(1)) that he be the holder of a valid temporary entry permit. As has already been mentioned, the latter expression, where it appeared in s.47(1), did not include an entry permit that was subject to the condition referred to in s.33(4)(a) of the Act. Clearly, it was in an attempt to satisfy that requirement that the respondent sought the application forms from the Department. To have obtained an extended eligibility (other) temporary entry permit would have satisfied that requirement as such a permit was not subject to the condition referred to in s.33(4)(a). It cannot, therefore, be said that the respondent was supplied with forms "quite inappropriate for his circumstances, intentions and desires".
We are, therefore, unable to agree with the first of the grounds upon which the primary judge set aside the decisions under review.
Turning to the second of those grounds, it is to be noted that the purpose of reg.35AA was to confer a discretionary power on the Minister to grant a temporary entry permit to an illegal entrant. The power was, however, limited to the granting of an entry permit falling within one of the classes of entry permits specified in Schedule 3 to the regulations other than an entry permit of a class that might be granted only as a permanent entry permit. In other words, reg.35AA did not enlarge the classes of entry permit that the Minister might grant. This had the consequence that it remained a pre-requisite to the obtaining of an entry permit pursuant to the power so granted that the applicant satisfy the prescribed criteria in respect of the class of entry permit applied for except in so far as reg.35AA provided to the contrary.
The classes of temporary entry permit to which it was suggested the respondent might have been entitled were identified as item 23 (family relationship) and item 46 (close family visitor) in Part 1 of Schedule 3 to the regulations. The primary judge appears to have assumed that, if the respondent had been able to obtain the grant of a temporary entry permit within either of those classes, he would have satisfied the requirement in s.47(1) of the Act of being the holder of a valid temporary entry permit. Such an assumption is, however, erroneous. That the holder of a temporary entry permit falling within either of those classes would not have satisfied the requirement set out in s.47(1) is apparent when one has regard to the terms of s.47(7) and the effect of reg.29 and item 1 in Schedule 5 to the regulations. Those provisions clearly established that a temporary entry permit within either of those classes would have been subject to a mandatory condition that such a permit was not to be taken to be a valid temporary entry permit for the purposes of s.47(1) of the Act. Further, the respondent was unable to point to any other class of temporary entry permit for which, applying the provisions of reg.35AA(1), he might have been eligible and which would have qualified as a "valid temporary entry permit" for the purposes of s.47(1).
We should add that, in the light of the conclusion to which we have come, it is unnecessary to consider whether the primary judge was correct in concluding that s.34 of the Act did not preclude the Minister or his delegate granting an entry permit of a class other than that applied for provided the applicant satisfied the prescribed criteria in relation to that other class.
The appeal is allowed. The judgment appealed from is set aside and, in lieu thereof, it is ordered that the application be dismissed with costs. The respondent must pay the appellants' costs of the appeal.
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