Perez, F. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 903

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403 /Q\

JUDGMENT No. ........ ........ ..- .-..-

C A T C H W O R D S

CITIZENSHIP, IMMIGRATION AND EMIGRnTION - application for interlocutory relief - whether serious question to be tried - what is conduct or decision - application for extension of temporary entry permit - consideration of alternative preconditions

Miaration Reaulations, Reg. 120

Floserfida Perez (also known as Floserfida Revel11

v. Minister for Immiaration, Local Government and Ethnic Affairs

No. QG 69 of 1991

PINCUS J.
BRISBANE

31 MAY 1991
IN THE F E D E ~	COURT OF AUSTRALIA ) No. QG 69 of 1991
QUEENSLmD DISTRICT REGISTRY	1
GENERAL DIVISIOJ	1

BETWEEN:	FLOSERFIDA PEREZ (ALSO KNOWN AS FLOSERFIDA
-  REVELL1

Applicant

AND: MINISTER FOR IMM-IGRATION, LOCAL GOVERNMENT AND

ETIINIC - - AFFAIRS - - - -

Respondent

MINUTES OF 0-

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	31 MAY 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. Until trial or further order, the Minister for
Immigration, Local Government and Ethnic Affairs
take no further steps towards making a deportation
order against the applicant, Floserfida Perez.

2.    The applicant file any further material to be relied on by her on or before 14 June 1991.

3.    The respondent file any further material in reply on

or before 28 June 1991.

4 .    The matter be tried at a date to be fixed by the Registrar.

5.    Costs of and incidental to today's hearing be costs in the proceedings.

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

No. QG 69 of 1991

IN THE FED~RAL COURT OF AUSTRALIA I

9UEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION

BETWEEN: FLOSERFIDA PEREZ (ALSO KNOWN AS

FLOSERFIDA REVELL1

Applicant

AND: MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

W: PINCUS J.

PLACE: BRISBRNE

W: 31 MAY 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application for interlocutory relief in a migration matter. An order was made that the Minister take no steps towards making a deportation order until 4.15 pm today,

and I indicated that I would give a decision at 2.30 pm, which

I propose to do. The matter was argued on behalf of the

applicant in two phases and it is necessary to deal with them

both. For that purpose, I propose to state briefly the

history of the matter, as I understand it.

Having initially obtained a visa, the applicant

entered Australia under a temporary entry permit on 17
November 1990. At that time, she had developed a relationship
with a Mr. Revell, a solicitor (she herself being a lawyer)
but had not yet agreed to marry him. However, according to

her evidence, in early January, Mr. Revel1 and the applicant
agreed to marry at a later date, about the middle of the year.

During the currency of the temporary entry permit, an application was made for an extension. That was refused. That application was made on 25 January this year and it was refused on 19 March. In the following month, on at least two

occasions, the applicant was in contact with the Department
and says t-hat, in effect, she obtained wrong advice as to what
to do about her situation. Ultimately, on 16 April, an

application was made for permanent residency.

On 13 May, two events occurred, according to the

evidence: one, the applicant married Mr. Revell: secondly, she received a letter refusing the application for permanent residency. The order in which those events occurred is not

stated. On 16 May, she was arrested and on 17 May came before

the Magistrates Court and, subsequently, before this Court.

The applicant's task at this stage is to establish a

serious question to be tried and in the endeavour to do so, a
number of points have heen taken. I do not propose to deal
with them all, but it is necessary to say something about a
number of them. Before doing so, I should say that the matter
seemed to me to have been rather hastily argued in the first

place and, at my request, written fiubmissions were produced.

Without casting any aspersions upon the applicant's
submissions, I must say I was grateful to the respondent for

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3

producing with their submissions copies of what they believed
to be the relevant statutory provisions and regulations.
They are becoming increasingly difficult to find, with the
frequency of amendments to the regulations; although a Judge
is supplied with some staff, there simply is not enough time
to assemble these materials in a hurry, so that gestures of
the sort which I mention are matters for which the Court is

grateful.

In the first batch of submissions, complaint was

made of events which happened in April this year when it was
that a Mr. Smirnoff, an employee of the Department, misled the
applicant. It seems to me unnecessary to discuss that in
detail because of a difficulty which is that, in my opinion,

it is not seriously arguable that what Mr. Smirnoff did

amounted to a decision. It seems, to put it broadly, that

Mr. Smirnoff gave some advice. It is not suggested, as I understand it, that he purported to be making any decision on behalf of the Department.

It is also said in the submissions that a direction

was given in April by at least one official of the Department
to make an application, which was a misguided course. In my
opinion, that is rather a fanciful view of the evidence and,
again, it does not seem to me that there was any decision. In
the alternative, it is suggested that there is conduct within
the meaning of the relevant provisions of the Administrative

Decisions (Judicial Review) Act 1977 (the "Judicial Review

m"); that does not seem a promising line in view of the

4   l

opinions expressed by the High Court in the case of Australian Broadcasting Tribunal v. (1990) 6 4 A.L.J.R. 4 6 2 as to the scope of the meaning of "conduct" within s.6 of the Judicial

Review Act.

It is a digression to say so, but the respondent has

argued that there is no jurisdiction in the Court, as I
understand it, because the matter does not fall within 6.13 of
the Judicial Review Act. That submission is misconceived, in
my opinion, because it is not s.13 which the applicant wishes
to invoke.

Putting the matter broadly, having considered the

events of April, I do not on the present evidence see any

reasonable hope for the applicant there.

It is then necessary to turn to earlier events, and

in particular the rejection, which I have previously

mentioned, which was given on 19 March 1991 and is a letter

unnecessary, in my opinion, to read the letter out in full,	signed by a Mr. J. Airs, addressed to the applicant. It is
but some parts of it should be read. It begins:

"I refer to your application for a further entry
permit lodged with this office on 2 5 January
1991.

To be granted an extension as a visitor the holder of a visitor visa or entry permit must satisfy the criteria prescribed under

Regulation 120 of the Migration Regulations.

To meet the criteria, the applicant must:

- have compelling personal reasons for

seeking to extend their stay in Australia;

or

- establish that a further period of stay is
necessary in relation to legal
proceedings: or

- seek to extend their stay in Australia for
purposes of tourism; or

- establish that a further period of stay is
necessary to complete business
arrangements or negotiations".

Then the letter sets out various other necessary preconditions. The letter then goes on:

"In general, the maximum period of stay in

Australia allowed to visitors is six months. A

longer period of stay may be allowed if there

are special circumstances in a particular case.

Consideration of your application shows that
you have been unable to meet the requirement of
Regulation 120(e), you have not shown
compelling reasons or special circumstances to

warrant an extension in Australia".

Regulation 120(e), a copy of which I have been

supplied with, is one of a series of conditions (which are not alternatives) that must be complied with, it is common grollnd, in a case of this sort. Sub-reg.(e) reads:

"the applicant, being an applicant for a visitor

entry permit:

(i) establishes that there are compelling
personal reasons for seeking to
extend his or her stay in Australia;
or

establishes that a further period of

(ii)      stay in Australia is necessary in connection with legal proceedings; or

seeks to extend his or her stay in

(iii)     Australia for purposes of tourism; or

... ,

to put it simply, (iv) establishes that a further period of
stay is necessary for business reasons.

These criteria are accurately set out (the last being somewhat abbreviated) in the letter to which I have referred. However, attention has been drawn to a passage which I have read, setting out the considerations which

according to the writer led to rejection.

It is a matter for concern that the writer has not referred accurately to the requirements of regulation 120(e). What he said is; I quote again:

"you have not shown compelling reasons or

special circumstances to warrant an extension

in Australia".

This statement which is said to demonstrate lack of

compliance with regulation 120(e) is inaccurate in more than
one respect. Firstly, 120(e), unlike the lettered paragraphs,
does set out alternatives. One may either show compelling
personal reasons, or the necessity of a stay in connection
with legal proceedings, or the purpose of tourism, or a
business purpose. There is no mention in any of these
provisions to which I have just referred of special
circumstances, and it is difficult to know why the writer
thought that 120(e) imposed that as a condition.

The simple point, however, which was taken by Mr.

Boccabella is that the documents show that the applicant did put her application forward, at least in a substantial part, as based upon a touristic purpose. Yet the ultimate reason

given for the alleged non compliance with regulation 120(e)
made no reference to this. The argument is not overwhelming,
but it does seem to me to be arguable that the letter
evidences a lack of attention to the precise terms of

regulation 120(e).

That is a matter of some importance, so it is

contended, for two reasons: one is that the writer of the
letter dated 19 March, Mr. Airs, did not purport to be
exercising a discretion. He refused further time, as I
understand the letter, because he thought that result was

unavoidable. Unfortunately, it is not clear that he

accurately directed his mind to the four possibilities in
regulation 120(e).	The second reason why it is argued that

this error, if such it be, is of significance is that Mr. Boccabella says that but for that mistake the application should have been granted and the subsequent difficulty which

was consequential upon the applicant not having any right to

be in this country would not have arisen.

Mr. Clutterbuck, who has appeared on the other side,
does not concede that legal consequences flow; he has argued,

as I understand it, that whether or not the error which was
contended for was made there should be no relief granted and
the matter should not be tried.

Although the case did not initially appear to me to

have much strength, on further consideration of the matter I
think enough has been shown to warrant an extension of the
order which was made, and that will be granted. That is, it
appears to me that although ultimately the applicant may fail,
there is a serious question raised.

Looking at the matter more broadly, although I was

informed from the bar table by Mr. Clutterbuck, and I think by
counsel who preceded him, that what has been done is in
accordance with the practice, it does seem a marginal case in
the sense that there appears to be no suggestion that the
marriage which has taken place is other than genuine. There
is no suggestion, either, that the applicant is, for what
might be called personal reasons, an undesirable applicant.

She has expressed an intention of applying for

citizenship, and I also take that into account, although it
does not seem to me to be a very weighty matter. Therefore,
in the exercise of the discretion to which I think the

circumstances give rise, I have determined to make the

following orders:  (1) The order made on 30 May 1991, order

number 1, will be extended until trial or further earlier order; (2) The applicant is to file any further material

relied on by her on or before 14 June: (3) The respondent is

to file any material in reply on or before 28 June.

It does not seem to me that discovery is necessary. Unless either party raises any other matter I then simply propose to order that the matter be tried at a date to be fixed by the Registrar. I propose to make the costs costs in

the proceedings.

I certify that this and the eight preceding pages are a true copy of the reasons

for judgment herein of his Honour Mr. Justice Pincus.

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"--A- GY=----

Associate

Date 3' May 1 ' %

Counsel for the applicant:	Mr. L. Boccabella
Solicitors for the applicant:	Revel1 & Co.
Counsel for the respondent:	Mr. R.  J. Clutterbuck
Solicitors for the respondent:	Australian Government Solicitor
Dates of Hearing:	25 and 30 May 1991