Minister for Immigration, Local Government and Ethnic Affairs v Buksh - [1992] FCA 111

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Minister for Immigration, Local Government & Ethnic Affairs v Buksh, F.M. [1992] FCA 111 ((1992) 26 ALD 399)
Case: [1992] FCA 111
Decision Date: 13 MARCH 1992

CaseChat Overview and Summary

The Minister for Immigration, Local Government and Ethnic Affairs filed an appeal against the decision of Justice O'Loughlin to grant a temporary entry permit to a citizen of India, Mr. Buksh, who had been in Australia illegally. Justice O'Loughlin had found that the Minister had a duty to advise Mr. Buksh as to the class of entry permit that he should apply for and that Mr. Buksh was qualified for a class of entry permit other than that applied for. The Minister argued that Justice O'Loughlin had erred in finding that there was a duty to advise Mr. Buksh as to the class of entry permit that he should apply for and that Mr. Buksh was qualified for a class of entry permit other than that applied for.

The court found that there was no duty on the Minister to advise Mr. Buksh as to the class of entry permit that he should apply for. The court found that the duty to advise only arose if the Minister was satisfied that an application for a visa would be successful. The court found that the Minister was not satisfied that an application for a visa would be successful and therefore had no duty to advise Mr. Buksh as to the class of entry permit that he should apply for. The court also found that Mr. Buksh was not qualified for a class of entry permit other than that applied for. The court found that Mr. Buksh had not satisfied the criteria for a bridging visa and therefore was not qualified for a class of entry permit other than that applied for.

The appeal was allowed, the judgment appealed from was set aside and in lieu thereof it was ordered that the application be dismissed with costs. The respondent was ordered to pay the appellants' costs of the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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