Mr B v Minister for Immigration & Multicultural Affairs
[1997] FCA 422
•21 MAY 1997
CATCHWORDS
Migration - Criterion for the grant of a Class 816 permit that the application for refugee status must have been recorded by Immigration as having been received - Departmental officer omits to record an application for refugee status which is not proceeded with as a result of incorrect advice given by the officer to an applicant - Consideration of principles relevant to construction of a requirement as mandatory or directory - Whether the criterion is mandatory or directory - Whether non-compliance with the criterion prevents the grant of the permit - Whether the Minister is estopped from relying upon non-compliance with the criterion - Whether the criterion is invalid on the ground of unreasonableness - Whether a failure to call witnesses is a failure to accord substantial justice.
Migration Act 1958 (Cth) ss.33(2), 34(4), 353, 476(2)
Migration Regulations 1993 (Cth) Reg.816.72
Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Secretary, Department of Social Security v. Cooper (1990) 26 FCR 13
Howard v. Bodington (1877) 2 PD 203
Australian Broadcasting Corporation v. Redmore Pty Ltd (1989) 166 CLR 454
The State of Victoria v. The Commonwealth and Connor (1975) 134 CLR 81
Hunter Resources Limited v. Melville (1988) 164 CLR 234
Hamilton v. Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349
Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117
Plunket v. Malley (1863) 8 Irish Jurist (N.S) 83
Wang v. Minister for Immigration and Multicultural Affairs Merkel J, unreported, 13 February 1997
Saraswati v. The Queen (1991) 172 CLR 1
Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193
Minister for Primary Industries and Energy v. Austral Fisheries Pty Ltd (1993) 40 FCR 381
Li v. Minister for Immigration and Multicultural Affairs Foster J, unreported, 24 April 1997
Servos v. Repatriation Commission (1995) 56 FCR 377
VG950/1995 - MR B V. THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
MERKEL J
MELBOURNE
21 MAY 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION VG No. 950 of 1995
BETWEEN
MR B
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
COURT:MERKEL J
PLACE:MELBOURNE
DATE:21 MAY 1997
ORDERS
The application is dismissed.
The applicant pay the respondent's taxed costs of and incidental to the application.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION VG No. 950 of 1995
BETWEEN
MR B
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
COURT:MERKEL J
PLACE:MELBOURNE
DATE:21 MAY 1997
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the People's Republic of China. Since 15 April 1990 he has resided in Australia pursuant to extended student entry permits.
On 25 July 1992 the applicant attended the office of the Department of Immigration, Local Government and Ethnic Affairs (DILGEA) for the purpose of lodging an application for refugee status but was persuaded by a departmental officer not to proceed with his application. On 8 November 1993 the applicant lodged an application for refugee status.
On 20 July 1994 the applicant lodged an application for a Class 816 (Special (Permanent)) Entry Permit. The application was refused on the ground that the applicant did not meet one of the requirements set out in Schedule 1, Part 816 of the Migration (1993) Regulations ("the regulations"). The particular requirement, which was contained in reg.816.721(5)(a), was that an application by the applicant for refugee status:
"must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993"
On 21 November 1995 the Immigration Review Tribunal ("the IRT") affirmed the decision refusing the application. The IRT decided that, as the requirement was mandatory and there was no record of an application by the applicant for refugee status prior to 1 November 1993, the application for a Class 816 permit must fail.
The applicant applied to the Court to review the decision of the IRT under Part 8 of the Migration Act 1958 ("the Act").
The facts
In its decision the IRT summarised the applicant's evidence:
The Principal submitted to the Department that he failed to lodge his application for a determination that he was a refugee prior to 1 November 1993 due to certain circumstances. These circumstances were outlined in a statement submitted to the Department dated 16 July 1994.
...The idea of applying refugee status in Australia first occurred to me after my arrival in Australia, in view of the many well-know reasons, especially the unchanging human rights status of[sic] china under C.P.C'S consistent policy. But I noticed the Australia government had not set up a clear-cut policy regarding those applicants who lodge their refugee applications as early as the June 1989 period. My application
was delayed also due to language barrier, and I was told that I could only choose either a either a students visa or refugee application, not both.
On May 22 1992, the fifth issue of Chinese Migrant Bulletin published a speech of ex-immigration Minister Gerry Hand, which also mentioned students hoping to keep their visas must at least give up refugee application. [sic] on May 25, I went to the DILGEA office with my friend[sic] at 10.30 AM, A officer greeted us and advised that if we lodge refugee application, our student's visas could not ensure the extension, and if our applications were refused, the student's visa would expire automatically. Such being the case, I really think there exist a lot of unfair situations in the refugee processing procedures in Australia. At that time, I believed keeping my student visa was the best way for future decision as when to lodge my already completed forms.
I was really shocked to learn of the so-called 'November 1st' Decision of the Australia Government. To be more exact, I feel to have been left out, misled and fooled. Many Chinese students never interested in real studying, are eligible for normal working and protection as they Lodged refugee applications as early as possible, some of them have even gone back to China and withdrawn their refugee applications, yet, they are still eligible for the criteria of 'class 816' while a person of similar background like me, who always try to learn something and to maintain my student visa as the Australia Government, expect is excluded for protection.
I, therefore, have to take legal proceedings to ask a fair treatment of my case from the Australia Government.
The Principal's oral evidence is essentially the same as his written submission. The Principal told the Tribunal that in 1992 he went to the King Street office of the Department with three friends. He stated that he and two of his friends had completed an application for a determination that they were refugees prior to their attendance at the office, which they took with them to the office. A third friend assisted with interpreting.
The Principal said he was told that he could not keep his student entry permit if he lodged an application for a determination that he was a refugee. The Principal took back his application. The Principal's submission is that he had attempted to lodge an application which was rejected by the Department.
The Principal then recalled hearing on the Chinese radio in November 1993 about the government's decision to introduce a number of Classes of visas including the Class 816. He told the Tribunal he went to the Department's Preston office about one week later and lodged an application for a temporary protection visa and an application for a determination that he was a refugee. This was the application lodged on 8 November 1993.
The IRT's findings in respect of the applicant's case, in so far as is relevant, were:
The major issue in this application is whether the Principal lodged an application for a determination that he was a refugee which was recorded as being received by the Department on or before 1 November 1993. The Principal's application was recorded as having been received on the 8 November 1993. The Principal does not dispute this
fact. However he submits that he attempted to lodge an earlier application for a determination that he was a refugee at an office of the Department in May 1992. He was dissuaded from doing so, according to his evidence, by a Departmental Officer.
This issue was extensively discussed in Re Pei (IRT Decision 5689, 21 August 1995) and the Tribunal adopts the reasoning outlined in that decision which found the Tribunal has no discretion in determining whether an application was recorded as received by the Department, on or before 1 November 1993.
In Re Pei the IRT concluded that the question of determining whether, and if so when, an application for refugee status was recorded as having been received by the Department was a question of fact in respect of which there was no scope for discretionary considerations.
The IRT concluded:
It has been submitted by the applicant that there were extenuating circumstances as to why he failed to lodge his application for refugee status, which was not recorded as being received by the Department until after 1 November 1993. However, the Tribunal has no power to consider the circumstances which led to the lodgement of the Principal's refugee application after 1 November 1993. The Tribunal is bound to apply the Migration Regulations as they relate to this particular entry permit. It is a question of fact that the Principal lodged an application for a determination that he was a refugee which was recorded as being received by the Department on 8 November 1993, that is after 1 November 1993. It is clear therefore that the application for a Class 816 (special (permanent)) entry permit cannot succeed.
In his written submissions to, and evidence before, the IRT the applicant appeared to accept that he did not lodge his refugee application on 25 May 1992. However, in the course of his oral evidence the applicant said that he handed the application to an unnamed departmental officer who read it and then told him that if the applicant proceeded with the application he could not keep his student visa. The applicant says that as a consequence of that advice he withdrew his application.
The following passages in the transcript reflect the substance of the applicant's evidence to the IRT in support of his present case that he lodged, but withdrew, his application for refugee status on 25 July 1992:
THE INTERPRETER: Because as early as 1992 I already submitted my application for refugee status but my application was knocked back.
MS SCOTT:What do you mean you submitted your application for refugee status?
THE INTERPRETER: Because it was in a decision that only those who have submitted this application for refugee status were qualified to apply for 816.
MS SCOTT:Are you saying, Mr [B], you had already lodged an application?
THE INTERPRETER: That is right.
MS SCOTT:So you had lodged your application before 1 November 1993?
THE INTERPRETER: Yes, but it was refused, it was knocked back.
MS SCOTT:So when did you lodge the application?
THE INTERPRETER: Well at the time because of my poor English I had to go there with a friend who accompanied me to go there and where I submitted my application but I was told that if I lodged my application for refugee status I could not keep my student visa, so it is either/or situation in which he asked me to choose, and as I could not keep my student visa I could not submit that application, I had to keep my student visa in order to stay in Australia as a student, that is how I was rejected.
MS SCOTT:So you did not actually get to lodge your application with the Department?
THE INTERPRETER: Well I did give it over to him but he insisted that if you really want to lodge it you have to lose your student visa so he just gave that back to me. (T7)
and
MS SCOTT:But you had not lodged an application before 1 November 1993, Mr [B]?
THE INTERPRETER: But I did go to the office and he did tell me that I could not keep my student visa, and effectively he rejected my application then and there.
MS SCOTT:He refused to accept your application?
THE INTERPRETER: Well, he did not literally refuse to accept my application, but his advice is if you want to keep your student visa I cannot take your application.
MS SCOTT:So you took your application away with you, Mr [B]?
THE INTERPRETER: At the time I had two copies, one copy - one original form and the other one was a copy. He was still trying to recall details. Well, he said I could take your application, but you have to think about it, because your student visa might be affected. Then I said something like this: that - what if I insist in having my student visa? Then he said, in that case I have to refuse to accept your application.
On the basis of that evidence the main case put to the Court on behalf of the applicant, but not to the IRT, was that:
•the applicant made application for refugee status on 25 May 1992;
•DILGEA received the application on 25 May 1992;
•DILGEA omitted to record the receipt of the application;
•the applicant withdrew the application as a result of receiving incorrect advice from a departmental officer;
•the requirement under the regulations that the application be recorded as having been received is directory, not mandatory;
•as the requirement is directory -
(a)the failure to record the application as having been received does not have the consequence that the applicant failed to meet the relevant requirement;
(b)the Minister can be and, in the present case, is estopped from relying upon any departmental omission to record the receipt of the refugee application as a ground for refusing the application for a Class 816 permit.
It was central to the applicant's case that the applicant had satisfied the criterion that an application for a determination of refugee status be made on or prior to 1 November 1993 and that the IRT failed to consider his case on that basis. His Counsel conceded that the application for review under Part 8 must fail if the Court concluded that no application for refugee status was made on 25 May 1992.
On a fair reading of the decision of the IRT it is accurate to say that the IRT dealt with the case on the basis that no application for refugee status was lodged prior to 1 November 1993. That is not surprising as that was the case put by the applicant. Further, the factual basis for the applicant's present case that he made an application for refugee status on 25 May 1992 was slender, was inconsistent with the applicant's written statement and submissions, and was not articulated before the IRT.
Nevertheless the fact that the applicant's present case was not put to the IRT is not fatal. In such circumstances there can be reviewable error of law if the point is of sufficient significance and is fairly open on the evidence: see Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 54 FLR 334 and Secretary, Department of Social Security v. Cooper (1990) 26 FCR 13 at 18.
The legislative framework
Sections 33(1) and 181 of the Act empower the Governor-General to make regulations, inter alia, prescribing the conditions which are to be satisfied in relation to entry permits.
At the relevant time ss.33(2) provided:
Regulations made under subsection (1) may provide:
(a)for different classes of entry permits; and
(b)that, subject to sections 40 and 45, a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class.
Reg.2.22(2) provided, inter alia, that the prescribed criteria for a Class 816 permit were the criteria set out in Part 816.
Section 34(4) provided:
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.
On 1 November 1993 the Department of Immigration and Ethnic Affairs announced the creation of a Class 816 permit to provide access to permanent residence for "some better qualified asylum seekers" temporarily in Australia, provided, inter alia, that they had sought refugee status on or before 1 November 1993.
A Class 816 permit was provided for in Part 816 of the regulations. One of the express purposes of the Part was to provide for permanent residence in Australia for certain persons "who have applied for determinations that they are refugees" (reg.816.12).
The regulations set out the criteria which were required to be satisfied at the time of an application for a Class 816 permit; the permit had to be applied for on or before 1 August 1994.
The relevant criteria in respect of an applicant who had applied for refugee status were set out in reg.816.72:
816.72 Criteria to be satisfied at time of application (entry permit - after entry)
816.721 (1)The applicant is:
(a)a person who:
(i)had not turned 45 before 1 November 1993; and
(ii)meets the requirements of subclause (2) or (3); and
(iii)meets the requirements of subclause (4) or (6);
....
816.721 (4) An applicant meets the requirements of this subclause if:
(a)the applicant applied in accordance with subclause (5) for a determination that the applicant was a refugee (whether or not the application has been withdrawn, and whether or not the application, if not withdrawn, has been decided, and whether or not the decision, if made, was adverse to the applicant);
....
For the purposes of paragraph (4)(a), an application for a determination that the applicant is a refugee:
(a)must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993; and
(b)if the application was recorded by Immigration as having been received on or after 1 February 1993 - must have been made on the approved form.
Reg.816.721(6), which may be contrasted with reg.816.721(5)(a), provides for a Class 816 permit for nationals of Sri Lanka and the former Yugoslavia who had "applied, on or before 1 November 1993" for certain specified permits.
The provisions in the Act and the regulations dealing with the grant of entry permits to persons determined to have refugee status have varied from time to time. On 25 May 1992 reg.117A(1) of the Migration Regulations 1989 provided for a domestic protection temporary entry permit to be granted to persons satisfying certain criteria which included the criterion (under paragraph (b)) that "the applicant has been
determined by the Minister to have refugee status". As at 25 May 1992 neither the Act, nor the regulations made under it, contained any provision for the making or recording of applications for refugee status.
The procedure within DILGEA for refugee applications at the time was said on behalf of the Minister to be as follows:
In May 1992, there were a number of Departmental forms provided by DILGEA for the purpose of making an Application for Refugee Status and associated applications. An Application for Refugee Status in Australia was made on a Form 306, for which there was no prescribed fee. Such forms were usually but not always accompanied with a Form 908, which was an application for a Domestic Protection (Temporary) Entry Permit for which there was a prescribed fee of $30.00.
Whenever an application was made [to DILGEA] by the lodging of an Application For Refugee Status in Australia, either with or without an application for a Domestic Protection (Temporary) Entry Permit, the applicant would be issued with a receipt. If money were paid for the lodging of the application, the receipt would contain a code which identified the officer who received the application form and handled the transaction. A new file would then be opened unless there was an existing file for the Applicant.
The applicant's evidence disputed that all refugee applications were the subject of a receipt. However, I am satisfied that the usual practice within DILGEA involved some recording of refugee applications, when made, whether by a receipt, the opening of a file or otherwise.
Prior to 25 May 1992 the Government had created a special category of four year temporary entry permits for students from the People's Republic of China who were in Australia in June 1989. A significant number of Chinese students, who arrived on student visas after June 1989, wished to apply for refugee status but were concerned that the application might affect their student visas. The concern was not unwarranted. The reason for it was that an applicant for a student visa might be regarded by DILGEA as lacking in bona fides and as attempting to circumvent the provisions for such visas if the applicant intended to apply for refugee status. The problem was stated in the following terms by a Senior Adviser to the Minister in a letter to the Chinese Students and Graduates Association sent in April 1994:
I note your fears that your student entry permits could have been put in jeopardy by lodging refugee applications. When people inquire about applying for refugee status, it is appropriate to explain to them their position under the law. An application for refugee status is accompanied by an application for permanent residence. Students who make any application for permanent residence may put the continuation of their student status in jeopardy. People legally in Australia who are considering applying for refugee status are therefore, faced with a choice about when to lodge an application. At no time, however, would they be prevented from doing so.
Although the Domestic Protection visa available to refugees in May 1992 was not a permanent visa, a similar view was apparently held, within DILGEA, as to the potential inconsistency between applications by the same person for an extension of a student visa and for refugee status. It would appear that on 25 May 1992 that view led a departmental officer to proffer the incorrect advice to the applicant which led him not to proceed with his refugee application.
The problem in the present case arises from the fact that a criterion for a Class 816 permit for persons in the applicant's position was not that the application for refugee status must have been made prior to 1 November 1993. Rather, it was that the application "must have been recorded by
Immigration as having been received by Immigration on or before 1 November 1993;" (reg.816.721 5(a)).
The applicant's application for refugee status
The applicant submitted that the IRT erred in law in not determining whether the applicant had made an application for refugee status on 25 May 1992.
In my view the IRT, in its decision, proceeded on an assumption that no application for refugee status was made prior to 25 July 1992 but made no finding to that effect.
Although the evidence in support of a finding in favour of the applicant on that issue was, at best, slender, there was some evidence before the IRT which might have entitled it to find that an application was made, but withdrawn, on 25 May 1992. Whilst I have grave doubts as to whether the evidence relied upon would warrant such a finding, particularly having regard to the substantial oral and written evidence in support of the contrary view, I have concluded that this issue is an issue of fact for the IRT, rather than the Court, to determine.
Accordingly, if the IRT omitted to make a finding of fact it was legally required to make, the IRT would have erred in law and it would be appropriate to remit the matter to the IRT: see Waterford v. The Commonwealth (1987) 163 CLR 54 at 77-8 per Brennan J.
However, the issue of fact only arises if the requirement that the application be recorded as having been received is not a criterion which must be satisfied as a precondition for the grant of a Class 816 permit.
Mandatory and directory requirements
In Statutory Interpretation in Australia, D.C. Pearce and R.S. Geddes, 4th Edition, 1996 at 264 it is suggested that the problem of classifying provisions as mandatory or directory is one of the most intractable problems encountered by the courts in the interpretation of legislation using words such as 'shall', 'must', or 'is required'.
The general principle was stated in Howard v. Bodington (1877) 2 PD 203 at 211 by Lord Penzance:
I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.
Strict compliance with a requirement that is imperative or mandatory is a precondition to the action taken. Originally substantial, rather than strict, compliance was considered to be sufficient for a directory or merely procedural provision. However, in more recent cases it has been accepted that non-compliance with a directory provision does not necessarily result in invalidity. Ultimately, the effect of non-compliance with a statutory requirement is not a question of categorisation into the mandatory/directory dichotomy. Rather, it is a question of legislative intent to be discerned in the words of the relevant statutory provision construed in the context of the statute as a whole: see Australian Broadcasting Corporation v. Redmore Pty Ltd (1989) 166 CLR 454 at 457 per Mason CJ, Deane and Gaudron JJ.
In The State of Victoria v. The Commonwealth and Connor (1975) 134 CLR 81 at 179 Stephen J explained the underlying principle:
A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory.
Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute.
At 284-5 Professor Pearce and Mr Geddes explain the present position as follows:
The only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of 'substantiality'; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no adverse consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation).
The cases dealing with mandatory/directory problems generally fall into two broad categories: see Pearce and Geddes at 265. The first relates to cases in which a statute empowers a person or body to carry out a certain act subject to conditions. The second relates to cases where a procedure is specified in a statute for the carrying out of a particular function or for the exercise of a particular power. The ultimate issue in each category is whether, construing the relevant provisions in their context (including their scope and purpose), there is a legislative intent that either strict or substantial compliance with the relevant requirement is a precondition to the validity of the action taken: see Pearce and Geddes at 265, Hunter Resources Limited v. Melville (1988) 164 CLR 234 at 241, 245, 248-9, 251, 256-7 and Hamilton v. Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349, 358-61.
Is the requirement as to the recording of the receipt of a refugee application a criterion which must be satisfied?
It was submitted on behalf of the applicant that the criterion as to recording was a procedural rather than a substantive or mandatory requirement. It was contended that Hamilton's case supports the submission. Hamilton was concerned with a Class 806 entry permit which, under the regulations, "must" have been applied for "in accordance with" a specified form. A criterion for the visa was that a relative, falling within a specified category, had nominated the applicant for the grant of the entry permit at the time of the application for the permit. As a result of incorrect information from DILGEA the applicant had not completed a nomination form at the time of her application. Consequently, the application was not in accordance with the prescribed form. Davies J, in a judgment which was concurred in by Sheppard and Burchett JJ, concluded that the requirement as to the form of the application was merely procedural, therefore requiring only substantial compliance, but that the requirement that there be a nomination at the time of the application was a substantive requirement which must be complied with.
In my view Hamilton does not assist the applicant. The equivalent procedural requirement in the present case is reg.816.711(1) which requires that a class 816 permit application must be made in accordance with a specified form. The requirement in reg.816.721(5)(a) that a refugee application be recorded as having been received is stipulated as one of the criteria to be satisfied at the time of the application. In that regard it is analogous to the substantive criterion in Hamilton that there be a nomination at the time of the application.
It was also submitted on behalf of the applicant that it is now well accepted that a given requirement may be mandatory as to some integers therein and directory as to others: see Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 at 123 per Davies and Gummow JJ. Applying that principle the applicant contended that the requirement that a refugee application be made and received by DILGEA prior to 1 November 1993 is mandatory but the further requirement that it be recorded as having been received is merely directory. The applicant supported the submission by referring to the decision in Plunket v. Malley (1863) 8 Irish Jurist (N.S) 83 at 86 which stated as a principle of statutory construction that:
so far as the Acts prescribe things to be done by the parties themselves, they are construed as mandatory and imperative; but so far as they require things to be done by the public functionary they are held to be only directory, and the default or mistake of the officer will not destroy the rights of the parties.
Accordingly, it was said, so far as reg.816.721(5)(a) required "things to be done by the public functionary [i.e. recording] they are held to be only directory and the default or the mistake of the officer will not destroy the rights of the parties".
Although the submission has superficial attraction there are two problems with it. The first is that, as already pointed out, the issue is always a question of construction of the particular statute. Whilst case law, including Plunket, can offer some guidance, ultimately one must return to construing the particular statutory provision in the context in which it is found.
Secondly, Plunket was concerned with a statute which required that an entry be recorded in a manner required by the statute. Accordingly, the Court was not prepared to construe the statute in a manner which resulted in invalidity when the applicant had done all that the statute required of him but the public official had acted in breach of duty in failing to record the entry. In such circumstances one may discern a legislative intent that the acts required of the applicant be mandatory but those of the public official be directory. However, in the present case there was no statutory requirement for the recording of refugee applications in May 1992. Accordingly, a failure to record such an application did not have any effect on whether it was validly made.
In my view the criterion of the recording of the receipt of the refugee application is a criterion which must be complied with. The following matters have led me to that conclusion.
Part 816 of the regulations was enacted in the context of ss.33(2)(b) and 34(4) and reg.2.21(2). Under s.34(4) a failure to meet the prescribed criteria in relation to a particular class of permit "shall" have the result that the application for the permit is refused. The context to which I have referred leaves little, if any, scope for the grant of a permit when there has been no compliance with a criterion for that permit.
As a matter of construction, reg.816.7 deals separately with procedural and substantive requirements. Reg.816.711 sets out the procedural matters that are to be complied with in relation to an application for a Class 816 permit. Reg.816.721 sets out substantive requirements in the form of the criteria to be satisfied at the time of the application for the permit. The terms of reg.816.721 are precise and leave little scope for substantial compliance.
Regs.816.721 differentiates between the recording of the receipt of an application and the making of an application. Reg.816.721(4)(a) and (5)(a) require that an application for refugee status be made and be recorded as having been received. However, reg.816.721(6), which is the equivalent of reg.816.721(4)(a) for nationals of Sri Lanka and the former Yugoslavia, only requires that the relevant classes of permit had been "applied" for on or before 1 November 1993. There is a discernible legislative intent to add, as a substantive criterion in reg.816.721(5)(a), the requirement that the receipt of a refugee application be recorded.
It is difficult to disregard the requirement for the recording of the receipt of the refugee application without emasculating or substantially re-writing the regulation. In effect, the submission on behalf of the applicant that the requirement for the recording be treated as directory results in it being read out of the regulation altogether. By its nature and specificity the requirement is not one in respect of which substantial compliance can occur. Either there is, or there is not, a relevant record.
I accept that a purposive approach is appropriate in respect of statutory construction: see Wang v. Minister for Immigration and Multicultural Affairs Merkel J, unreported, 13 February 1997 at 15-21. For present purposes that approach may be taken to have been summarised by McHugh J in Saraswati v. The Queen (1991) 172 CLR 1 at 22:
Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision....
The regulation states that its purpose is, inter alia, to provide for permanent residence to certain persons who have applied for refugee status. However, the terms of reg.816.721(4)(a) and (5)(a) make it quite clear that a person to whom these regulations apply is to be treated as having applied for refugee status only if the application is recorded as having been received. The recording requirement was drafted for the specific purpose of avoiding the kind of dispute that has arisen in the present case. Accordingly, to read the recording requirement out of the regulation would be to defeat, rather than give effect to, the legislative purpose.
The applicant submitted that I should not construe reg.816.721(5)(a) in a manner that gives it a retrospective, unreasonable, capricious or arbitrary operation. However 816.721(5(a) does not state that the record must have been made when the application for refugee status was received or before 1 November 1993. The criteria set out under 816.72 are criteria to be satisfied "at the time of application" for a Class 816 permit. In my view the requirements of reg.816.721(4)(a) and (5)(a) are satisfied if the application for refugee status was made and received on or before 1 November 1993 and was recorded as having been so received at the date of the application for a Class 816 permit. It is open to an applicant, at any time up to the date of his application for a Class 816 permit, to request that a record is made of the earlier receipt of the application for refugee status. The construction I have given to the regulation gives effect to the relevant words in a manner which is not retrospective, unreasonable, capricious or arbitrary as suggested on behalf of the applicant. Whilst it may be possible to conceive of some circumstances in which the regulation might operate unfairly, that does not afford a reason for doing violence to the language used. On its face the requirement of recording, which I have found would occur in the usual course, was an understandable, although not necessarily always a fair, way of resolving a dispute over receipt of a refugee application.
Hunter Resources (supra) supports the conclusion I have reached. That case concerned a requirement that a mining tenement be marked out by fixing pegs in the ground "at intervals not exceeding 300 metres along each of the boundary lines". An applicant for a prospecting licence had marked out a tenement with pegs at intervals which in three places slightly exceeded 300 metres. The mining warden refused the application because of non-compliance with the regulation. Wilson J, Dawson J and Toohey J each held that under the legislation compliance with the regulation was required. The pegging either exceeded or did not exceed 300 metres. In such circumstances there was no scope for substantial compliance. Mason CJ and Gaudron J held that, construing the relevant provisions in their context, including the scope and purpose of the Act, it was open to the warden to grant a prospecting licence notwithstanding non-compliance with the regulation.
All members of the Court accepted that the problem was one of construction rather than categorisation into a mandatory/directory dichotomy. However, at 251-2 Dawson J (with whom Wilson J generally agreed) discussed the difference between enactments dealing with statutory requirements in relation to performance of a public duty and those concerned with private rights:
If the concept of a directory enactment is extended to private rights, the question whether a provision is mandatory or directory must nevertheless be one of intent to be gleaned from the scope and object of the statute: Caldow v Pixell. It is a question of what consequences, if any, were intended to flow from the failure to comply with the statutory requirement and even if the difference between the performance of a public duty and the acquisition or exercise of a private right is not conclusive, that distinction does at least provide some guidance in distinguishing those provisions with which strict compliance was intended from those with which it was not. That point was made in Clayton v. Heffron:
"But in them all [the decided cases] the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so."
No public function is imposed upon an applicant for a prospecting licence and no public inconvenience is worked by holding him to strict compliance with the prescribed conditions to be performed before the making of an application....
The discussion is relevant to the issues arising under the regulations. As with the pegging requirement, the requirement relating to the making and recording of a refugee application relates to the exercise of a private right rather than the performance of a public duty. No public function is imposed in relation to the application and no public inconvenience is worked by requiring compliance with the prescribed criteria before a Class 816 entry permit can be granted. Whilst the dichotomy between public duty and private rights is not determinative, as in Hunter Resources, it offers a helpful indicator against treating a prescribed criterion as one which may be ignored.
For these reasons I am of the view that the main ground for challenging the IRT decision fails. As the criterion requiring the recording of the receipt of the refugee application must be satisfied, it follows that the issue of fact for the IRT was whether the application was recorded as having been received. If that requirement was not satisfied that was sufficient to dispose of the application for review to the IRT. In these circumstances there was no need for a further finding as to whether an application was made. Accordingly, the IRT did not err in law in not making a finding of fact on that matter.
Other submissions
Several other submissions were also put on behalf of the applicant. They may be dealt with briefly.
(a)Estoppel
It was contended that the Minister is estopped from relying on non-compliance with the recording requirement, as the failure to record was an omission which arose as a result of the erroneous advice of the departmental officer. It was submitted that estoppel can operate in respect of procedural or directory requirements: See Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193 at 212 per Gummow J.
I doubt that the factual basis for an estoppel is present as the Minister is not resiling from or relying on the erroneous advice of his departmental officer. However, there is a more fundamental answer to the submission. As I said in Wang at 10:
...the doctrine of estoppel cannot be relied upon by a Court so as to relieve against non-compliance with a requirement that the statute intends be satisfied: see s.478(2), Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 at 124-5 per Davies and Gummow JJ and Minister for Immigration and Ethnic Affairs v. Polat (1995) 57 FCR 90 at 104-107 per Davies and Branson JJ and at 111 per Whitlam J.
(b)Invalidity of reg.816.721(5)(a)
It was submitted that the recording requirement was not within the scope of, or a real exercise of, the delegated legislative power on the ground that it was so unreasonable that it is manifestly arbitrary or unjust: see Williams v. Melbourne Corporation (1933) 49 CLR 142, 150, 155 and Minister for Primary Industries and Energy v. Austral Fisheries Pty Ltd (1993) 40 FCR 381, 384, 401. It was also said that as there was no duty to record applications for refugee status, the regulation operated on a fiction as it wrongly presumed a duty to record.
In my view these submissions are without substance. The construction I have placed on the regulation does not give it an unreasonable, arbitrary, unjust or retrospective operation. The power conferred to make regulations and impose criteria is expressed in the widest terms. It is a power which can be lawfully exercised from time to time to give effect to government immigration policy. Reg.816.721(5)(a) clearly falls within the power conferred under ss.181 and 33(1).
Further, the regulation is not based on a fiction as I have found that the recording referred to in the regulation occurs in the usual course.
(c)Failure of the IRT to call witnesses
It was submitted that the IRT failed to call the witnesses required by the applicant and thereby did not act fairly and in accordance with the substantial justice of the applicant's case as was required by s.353 of the Act. It was contended that the evidence would have corroborated the applicant's version of his meeting with the DILGEA officer on 25 May 1992.
Legal and factual difficulties confront the submission. On the view I have taken of the operation of reg.816.721(5)(a), evidence corroborating the applicant's evidence as to the events of 25 May 1992 is not relevant. In any event I am not satisfied that the evidence could or would have added to the evidence already before the IRT. Further, as the applicant's evidence was not rejected it is difficult to accept any unfairness on the part of the IRT in not calling a corroborating witness.
There may be some doubt as to whether the failure by the IRT to call the witnesses requested by the applicant can constitute a ground of review under the Act: see Li v. Minister for Immigration and Multicultural Affairs unreported, Foster J, 24 April 1997 at 25-27 cf Minister for Immigration and Ethnic Affairs v. Surjit Singh 7 May 1997 at 12-14 per Black CJ, von Doussa, Sundberg and Mansfield JJ. In any event in my view the applicant's submission, in substance, if not in form, is that there was a denial of natural justice (rather than a failure to accord substantial justice) which is not a ground of review under Part 8: see s.476(2)(a). Accordingly, the present case does not require consideration of the possible tension between s.353 (which is equivalent to s.420 for the Refugee Review Tribunal) and s.476(2)(a): see Tranh Phat Ma v. Billings (1997) 142 ALR 158 per Drummond J; cf Foster J in Li and Surjit Singh (supra); De Motte v. The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal unreported, Tamberlin J, 8 May 1997; Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs unreported, Lindgren J, 6 May 1997.
(d)DILGEA Policy
It was submitted that the erroneous advice was given to the applicant as part of a general policy to wrongfully dissuade Chinese students from applying for refugee status. This ground is misconceived. The applicant's evidence is that he relied upon the advice he received from the departmental officer on 25 May 1992. In so far as his case relied upon the advice he received it cannot go beyond the advice he personally relied upon. Whether or not there was, in addition to that advice, other advice proffered on other occasions is not relevant to and cannot advance the applicant's case. Further, there are obvious difficulties in seeking to review a decision of the IRT on the ground of error of law on the basis of material that was not before it: see Servos v. Repatriation Commission (1995) 56 FCR 377.
In any event, for the reasons set out above DILGEA policy or advice to the applicant is not an issue relevant to the present application.
Conclusion
For these reasons the application is to be dismissed with costs. Before departing from the present case I would add that, as I pointed out in Wang (supra) at 10, a person who has acted to his or her detriment on the faith of misleading advice is not necessarily without a remedy; an appropriate remedy may be compensation.
I certify that this and the preceding 27 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Dated:
Heard: 5 & 6 May 1997
Place: Melbourne
Judgment:21 May 1997
Appearances: Mr J Dwyer Q.C. with Mr T Hurley instructed by Erskine Rodan & Associates appeared on behalf of the applicant
Mr R Tracey Q.C. instructed by the Australian Government Solicitor appeared on behalf of the respondent
2
1
0