Petrovski, Marjan v Minister for Immigration and Ethnic Affairs
[1996] FCA 565
•5 Jul 1996
CATCHWORDS
CITIZENSHIP AND MIGRATION - Application for citizenship by son of diplomat refused where erroneously issued with an Australian passport - citizenship - illegal entrant - valid entry permit - permanent residence - administration of Migration Act - intention of Parliament - correction of admitted administrative error - significant hardship and disadvantage
Passports Act 1938
Australian Citizenship Act 1948
Migration Act 1958
Air Caledonie International v The Commonwealth [1988] 165 CLR 462
Ates v Minister of State for Immigration and Ethnic Affairs [1983] 67 FLR 449
Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (unreported Federal Court, Burchett J, 25 November 1993)
Re Peng Au-Yong and Minister for Immigration and Ethnic Affairs [1986] 11 ALD 113
Re Bettels and Minister for Immigration and Ethnic Affairs [1986] 11 ALD 190
Re Dainty and Minister for Immigration and Ethnic Affairs [1987] 12 ALD 416
Re Stella Fung Kwan Lai (unreported, AAT No 3365, 17 November 1986)
MARJAN PETROVSKI v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No. G 166 of 1995
EINFELD J
SYDNEY
5 JULY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 166 of 1995
GENERAL DIVISION )
Between:MARJAN PETROVSKI
Applicant
And:MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
Respondent
MINUTE OF ORDERS
The Court:
allows the appeal
sets aside the decision of the Administrative Appeals Tribunal of 9 February 1995
finds that the applicant is not an illegal entrant under the Migration Act 1938
orders that the matter be remitted to the respondent for consideration or reconsideration of whether the applicant is entitled to be granted permanent residency as defined in the Australian Citizenship Act 1948 in accordance with the reasons for judgment herein
orders the respondent to pay the appellant's costs
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
5 JULY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 166 of 1995
GENERAL DIVISION )
Between:MARJAN PETROVSKI
Applicant
And:MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 5 JULY 1996
Introduction
On 6 February 1995 the Administrative Appeals Tribunal (the Tribunal) upheld a decision of a delegate of the respondent refusing a grant of Australian citizenship to the applicant, and he has now appealed to this Court from that determination. There was no dispute about the relevant facts. The applicant was born at Waverley, a suburb of Sydney, on 12 November 1969 when his father was Consul General in Australia for the former republic of Yugoslavia. In 1971, the applicant and his mother returned to the former Yugoslavia, his father remaining here until his term of office ended in 1972. Presumably the applicant travelled on a Yugoslav passport.
Whilst in Yugoslavia, at about the age of 14 years, the applicant formed the intention to return to live in Australia (AB 35). Indeed from the age of 15 he clearly assumed that he was an Australian citizen, because at that time he made application for an Australian passport at the Australian Embassy in Belgrade, supported by a copy of his birth certificate, 2 photographs and the prescribed fee. An Australian passport (the first passport) was issued in his name on 20 September 1984 to expire on 20 September 1989, at which time the applicant was serving in the Yugoslav Army. When he was released from the Army, he again attended the Australian Embassy in Belgrade with the first passport and was issued with a new passport (the second passport). There was no evidence or suggestion that either of the two passports was obtained by fraud or misrepresentation.
The applicant arrived in Australia on 21 September 1991 on the second passport and enrolled in a course to improve his English. He asserted that this decision supported his stated intention to make Australia his permanent home (AB 20). In May 1992 in Sydney, the applicant met Puangpetech Sivaprathomchai, a Thai national. When she returned to Thailand upon the expiry of her visitor's visa, the applicant followed her, travelling to Bangkok on the second passport. They were married in Bangkok in October 1992 and the applicant returned to Australia on 7 November 1992 with the same documentation.
He then applied to sponsor his wife and her daughter by a previous union for permanent residence in Australia. In a letter dated 21 July 1993, the respondent's department informed the applicant that:
..... you are not, and never have been an Australian citizen. The Australian passport issued at the Australian Embassy, Belgrade was issued in error, and should be surrendered.
This decision was based on the fact that at the time of the applicant's birth, his father was a consular officer at the Yugoslav Consulate in Sydney. This fact excluded the applicant from Australian citizenship by virtue of section 10(2)(c) of the Australian Citizenship Act 1948 (the Citizenship Act), which at the time of the applicant's birth provided:
10(2)A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father -
(a)was not an Australian citizen;
(b)was not ordinarily resident in Australia; and
(c)was -
(i)a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen's dominions or with inter-national organizations); or
(ii)a consular officer of a foreign sovereign power.
The fact that the applicant's birth certificate recorded his father's occupation as being Consul General for Yugoslavia was
obviously overlooked by the officials at the Australian Embassy in Belgrade when the two Australian passports were issued to the applicant. In due course the second passport was duly cancelled.
The applicant then applied on 1 February 1994 for a grant of Australian citizenship. The application was refused on 18 April 1994, and the Tribunal's confirmation of the refusal, now appealed to this Court, was for the reason that the applicant did not satisfy the requirement that he be a permanent resident of Australia as required by section 13(1)(a) of the Citizenship Act.
Australian citizenship
Section 13(1) sets out the specific matters to be taken into account by the Minister in the exercise of the discretion to grant citizenship:
13(1)Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a)the person is a permanent resident;
(b)the person has attained the age of 18 years;
(c)the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 1 year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f)the person is of good character;
(g)the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
Section 7(1) of the Passports Act 1938 empowers the relevant Minister to issue Australian passports to Australian citizens. However, the grant of a passport does not in law confer citizenship upon the holder. Hence, contrary to popular belief and the common use of passports to evidence citizenship, the fact that a person has a valid Australian passport is legally irrelevant to citizenship. Indeed the grant of an Australian passport is not a right, and the Minister as a matter of discretion may decline to issue a passport to any person referred to in sections 7A, 7B, 7C, 7D and 7E. There is, moreover, an absolute power in the executive government to revoke an Australian passport under section 8(1) of the Passports Act 1938 which states:
8(1)An Australian passport, whether in possession or custody of the person to whom it was issued or otherwise, may be cancelled by the Minister, an
approved representative or the approved senior officer, and a passport on being cancelled under this sub-section becomes void.
The principal question of law raised by this appeal is whether paragraphs (a) and (d) of section 13(1) of the Act operate as a bar to a grant of Australian citizenship to the applicant. There was no dispute between the parties that the applicant complied with all the other preconditions of section 13(1).
Permanent residence
Section 5A(1) of the Citizenship Act prescribes the circumstances in which a person is taken to be a permanent resident, including that:
(ba)(i)the person's continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law;
(ii)the person was not, during that period, an illegal entrant ...
"Illegal entrant" is defined by reference to section 14 of the Migration Act 1958:
14(1)On entering Australia, a non-citizen becomes an illegal entrant unless:
(a)he or she is the holder of a valid entry permit; or
(b)the entry was authorised by section 17.
Where a person to whom subsection 20(1) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:
(a)remains in Australia;
(b)is not a citizen; and
(c)does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa.
The applicant submitted that for the purposes of determining whether he is or was a permanent resident under the Citizenship Act, the Minister was entitled or was obliged to regard the applicant's 1991 entry and subsequent stay in Australia as complying with section 5A(1)(ba)(i) of the Act.
Valid entry permit
"Valid entry permit" is defined in section 4 of the Migration Act as being an entry permit that:
(a)was granted under this Act, whether before or after the commencement of section 4 of the Migration Legislation Amendment Act 1989;
(b)has not been cancelled under this Act; and
(c)has not expired, or otherwise stopped being in force, under this Act or the regulations; and includes a visa that has effect as if it were an entry permit because of section 18, but does not include a visa or similar notation, or a form of provisional authority to enter Australia, issued before 1 November 1979 on behalf of the Commonwealth.
The applicant's passport shows that when he entered Australia from the former Yugoslavia on 21 September 1991, and from Bangkok on 7 November 1992, his passport was stamped by officials at Sydney Airport (AB 29). The applicant contended that the stamps were, or should be treated as, entry permits because administratively they allowed the applicant into the country and were not restricted as to time in any way (T 14). He argued that in practical terms an entry permit is "a stamp in a passport" (T 11) which is quite separate to a visa. He stated that virtually all people entering Australia, whether citizens or not, are treated administratively in identical fashion. Thus the applicant said that he was not an illegal entrant because he had the requisite entry permit, and was thus entitled to apply for Australian citizenship.
The respondent submitted that even though the applicant had an Australian passport which permitted him to enter Australia, he was an illegal entrant at the time of his entries into Australia because he did not hold a valid entry permit at those times. The respondent contended that allowing the applicant through the gate at Sydney Airport was not a permission to enter the country, a fortiori not a "valid entry permit" granted under the Migration Act. It was also argued that the stamp in the passport and his subsequent permitted entry into the country, possibly both in September 1991 and in November 1992, were illegal because the officers admitting the applicant were at a lower level of the public service hierarchy than those who had been delegated the power to grant entry permits under the regulations. I am not
sure what evidence is suggested to support that submission or whether this argument was raised before the Tribunal.
I agree that the holding of an Australian passport does not have the legal effect of conferring on the holder Australian citizenship or permission to enter Australia. However, where duly authorised Australian officials, ostensibly exercising government authority to give or refuse such permission, have given a person permission to enter the country, I find it difficult to accept that that person is illegally in the country, potentially liable to criminal prosecution under section 77 of the Migration Act carrying the penalties of a fine not exceeding $5000 or imprisonment for a period not exceeding 2 years or both. It is irrelevant that a Court might decide not to proceed to record a conviction. It is the susceptibility to charge that is to my mind relevant.
A finding that the holder of a valid Australian passport could be declared an illegal entrant would mean that at the point of entry into Australia, immigration officials are or will be charged with the task of evaluating the validity of every Australian passport presented to them before allowing entry. That result would require that holders of Australian passports prove their citizenship by means other than their passport, in direct conflict with Air Caledonie International v The Commonwealth [1988] 165 CLR 462 at 470 where the High Court noted that citizens have under law a right to re-enter their country without the need of an executive "fiat" for so long as they retained their citizenship. Such a position would also be of
great practical inconvenience, and would no doubt cause much needless concern to all Australian passport holders. In other words, whatever the literal statutory or regulatory provisions, an Australian citizen may in reality enter Australia upon presentation of a duly issued Australian passport.
Moreover, if the applicant was an illegal entrant, he will be liable to deportation under section 200, which is perhaps even worse than any criminal prosecution. For if then he does not leave voluntarily, deportation will have the result that he will not be permitted to return to Australia for many years, a situation which on the evidence would cause this applicant great hardship and prejudice. It is quite incongruous that the applicant has been given permission to enter the country by the actions of Australian Embassy officials in Belgrade and Australian immigration officials at Sydney Airport, while yet another part of the Australian Government wishes to have him declared an illegal immigrant from the moment of his permitted entry.
Entry into Australia
Whenever any person enters Australia, whether a citizen or not, he or she must without unreasonable delay comply with section 166(1) of the Migration Act which requires that the person:
(a)show a clearance officer:
(i)if the person is a citizen (whether or not the person is also the national of a country other than Australia), the person's Australian passport or prescribed other evidence of the person's identity and Australian citizenship; and
(ii)if the person is a non-citizen, evidence of the person's identity and of a visa that is in effect and is held by the person; and
(b)give the clearance officer any information required to be given by this Act or the regulations.
Subsection (3) provides:
A person is taken to have complied with subparagraph (1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen.
The Migration Regulations require clearance officers to obtain from persons arriving in Australia seeking entry, information in respect of the following matters (regulation 3.01):
(a) name;
(b)date of birth and country of birth;
(c)citizenship;
(d)sex and marital status;
(e)usual occupation;
(f)passport number;
(g)if the person is not:
(i)an Australian citizen; or
(ii)a person who is eligible for the grant of a special category visa or a Permanent Resident of Norfolk Island visa; or
(iii)a person who will on entry be taken to hold a special purpose visa;
the number of the Australian visa held by the person;
(h)flight number of aircraft or name of ship in relation to the relevant flight or voyage;
country in which the person boarded, or intends to disembark from, the aircraft or ship;
(j)if the person is entering Australia - the intended address of the person in Australia.
Section 172 of the Migration Act provides:
A person is immigration cleared if, and only if:
(a)the person:
(i)enters Australia at a port; and
(ii)complies with section 166; and
(iii)leaves the port at which the person complied (sic) and so leaves with the permission of a clearance officer and otherwise than in immigration detention; or .....
Neither the Migration Act nor the Regulations require that an entrant's passport be stamped. They merely require that permission to enter be given. It is not necessary for a stamp or for specific words to be used. Thus the stamp on the second passport when the applicant returned from Bangkok merely constituted the official objectively provable imprimatur of the Australian Government permitting the holder to enter the country.
In summary then, the applicant arrived at Sydney Airport, which is a port for the purposes of the Migration Act, and presented his Australian passport to a clearance officer. Even though he was not then a citizen, he clearly complied with those procedures as were required of him by the relevant clearing officer
administering the Migration Act and Regulations at the time. The applicant was then given due permission to enter Australia as a consequence of which he entered the country. This state of affairs is, to my mind, completely inconsistent with an assertion that he entered Australia illegally. Moreover, even though the applicant's passport was subsequently revoked under section 8 of the Passports Act and thus became void, the cancellation of the passport did not affect the legality of the applicant's entry into Australia at that time.
Resolution of the entry problem
It has been often stated that the Migration Act must be administered in the best interests of Australia. This extends to:
..... Australia's interests broadly regarded and embraces, on occasion and according to circumstances, the taking of decisions by reference to a liberal and even compassionate outlook appropriate to a free and confident nation and conscious of its reputation as such: Ates v Minister of State for Immigration and Ethnic Affairs (1983) 67 FLR 449 at 455-6 (Smithers J).
Similarly, in Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 25 November 1993) Justice Burchett said:
It has been repeatedly said that the discretions conferred by the Migration Act must be exercised in the interests of Australia. Those interests are not to be understood in a narrow sense. This includes Australia's good name.
During the course of these proceedings, I commented that it was strange that there is no other way of resolving this matter than this litigation despite apparent attempts by the department and the applicant's lawyers to find a beneficial discretion by which Mr Petrovski would not be regarded as an illegal entrant. The failure of these efforts is, at least in part, the consequence of the Parliament's attempt to set up a regime governing entry to Australia designed to remove all discretions from decision-makers.
Yet Parliament cannot have intended the issue of two Australian passports and two grants of entry to Australia by administrative error to be reversible or determinable in the same way and with the same penalties as if the passports and entries had been gained by fraud. There cannot be very many people, born in Australia to foreign diplomatic representatives, who have subsequently been mistakenly granted Australian passports. Nevertheless, Australia's international reputation, and the severe hardship and inconvenience of a finding that the applicant was an illegal entrant, call for some commonsense to be applied to the statutory regime.
My view is that the stamps in the second passport in 1991 and 1992 and the consequential permissions to enter amounted to, or should be deemed to have been, approved and valid entry visas or entry permits to Australia at those times, and that the subsequent cancellation of the passport did not have the effect of cancelling or voiding those visas/entry permits. In my opinion, the applicant is not an illegal entrant.
Resolution of the permanent residence problem
I do not know why, but the applicant did not argue that in the event that he was not an illegal entrant, the provisions of section 13(4)(b)(iv) of the Australian Citizenship Act 1948 appear to permit him to remain in Australia. That section provides:
(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by an order of a court made in connection with criminal proceedings against the person; and
(b)subject to paragraph (a), the Minister may, in the Minister's discretion:
(iv)if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant - treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident;
There being no provision concerning permanent residence corresponding to section 10(2)(c)(ii) of the Citizenship Act in
respect of citizenship, it is certainly arguable that the time spent by the applicant in Australia as a young child was a period in which the applicant was present in Australia as a permanent resident. The position is even clearer in respect of the period from September 1991 to date. In all this time the applicant's presence in Australia does not appear to have come within any of the five categories of exclusion provided by subparagraph (iv). To be eligible for citizenship, the applicant would then need to show that he would suffer 'significant hardship or disadvantage' if a certificate of Australian citizenship were not granted to him. The departmental policy guidelines on the application of this section state that 'significant hardship or disadvantage' will be established if the applicant:
..... can demonstrate that he/she has been refused employment on the grounds that such employment is restricted to Australian citizens and alternative sources of employment are not reasonably available; or ... would be excluded from travelling overseas due to lack of an Australian passport or travel document ...
These guidelines have been considered in several cases: eg. Re Peng Au-Yong and Minister for Immigration and Ethnic Affairs [1986] 11 ALD 113; Re Bettels and Minister for Immigration and Ethnic Affairs [1986] 11 ALD 190, and Re Dainty and Minister for Immigration and Ethnic Affairs [1987] 12 ALD 416 where Justice Davies allowed an appeal by a businessman on the grounds that a lost business opportunity together with lost reputation by being unable to fulfil a contract for which he needed Australian citizenship constituted significant hardship or disadvantage
within the meaning of section 13(4)(b)(iv). Justice Davies found at 417 that the focus in that provision is on the hardship caused to the person by not granting citizenship.
In this instance, the applicant appears to have suffered significant hardship which is related to the refusal of his application for citizenship. He has been unable to visit his wife and her daughter whom he considers to be his own, as he has been unable to travel outside of Australia. Furthermore, even within the limited confines of departmental policy, he appears to have found it difficult to obtain work due to his uncertain citizenship status.
Another provision which was not argued, although apparently even more directly applicable, was section 13(4)(b)(v) of the Act which allows for the correction of administrative errors regarding permanent resident status in considering applications for citizenship. It provides that the Minister may:
(v)if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia - treat the period as a period during which the applicant was present in Australia as a permanent resident.
This provision was considered in Re Stella Fung Kwan Lai (unreported, No 3365, 17 November 1986), where the Administrative Appeals Tribunal found that the applicant's permanent residence was not actually granted until seven months after it had been approved, the result being that the applicant was deprived of a
passport, could not travel, and delayed her application for citizenship by seven months. The Tribunal noted that the Act was clear and unambiguous, and rejected the argument of the department that the power in subparagraph (v) is only to be used where, in all the circumstances, the nature of the error and its result clearly place an onus on the Minister to exercise the discretion as a remedial action. Although on the facts of the case, the Tribunal affirmed the decision refusing citizenship, it recommended that the applicant should be treated as having the status of permanent resident as from the date when she had been orally advised that her application had been granted.
In the present instance, there has been more than a mere processing delay or other petty act. The granting of two Australian passports to the applicant and the two permissions given to him to enter Australia amount to significant maladministration which is apparently able to be remedied by an exercise of the Minister's discretion. If so, I can see no reason why it would not be exercised in favour of the applicant, and every reason why it should. In my opinion his permitted sojourn in Australia is unlimited thus enabling him to be considered a permanent resident eligible for citizenship.
Conclusion
In my opinion the Australian Citizenship Act, the Passports Act, and the Migration Act and Regulations combine to imply that a person granted an Australian passport and entry into Australia without fraud and by administrative error, and who has made Australia a home is to be treated as eligible for permanent residence and Australian citizenship. I allow the appeal and set aside the determination of the Administrative Appeals Tribunal. I find that the applicant was not an illegal entrant when he entered Australia in September 1991 and November 1992 and that having made Australia his home, he is entitled to remain here.
On one view this finding should terminate the matter because the applicant was present in Australia as a permanent resident for more than the requisite period of years prior to his application for citizenship. As such he would be entitled to a declaration that he is entitled to a grant of Australian citizenship.
However, as my review of the legislation has demonstrated, there may be other technical even if formal requirements to be addressed that have not yet been attended to. For some reason the matter might eventually turn on the exercise of a ministerial discretion of the type provided by section 13(4)(b)(iv) and (v) of the Citizenship Act, and the applicable departmental guidelines. If so, the fact that no argument was directed to the Tribunal or to this Court as to whether the applicant can establish the prerequisites for the exercise of that discretion, and the fact that no evidence was led or findings made as to whether the applicant has suffered or would suffer significant hardship or disadvantage if citizenship was not granted, mean that I am obliged to remit the matter to the respondent for reconsideration in the light of these reasons for judgment. In
view of the time that the applicant and his wife have been forcibly separated through no fault of their own, and the employment and travel difficulties which the applicant has apparently encountered due to his uncertain status, it is to be hoped that the reconsideration can be completed speedily. The respondent will pay the applicant's costs.
For the appellant Mr P. Roberts instructed by Stewart Levitt & Co
For the respondent Mr D. Catterns QC instructed by the Australian Government Solicitor
Date of hearing 5 February 1996
Date of judgment 5 July 1996
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