Qalovi, I.L. v Minister for Immigration & Ethnic Affairs

[1994] FCA 387

IOSEFU LESLEY QALOVI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G11 of 1994
FED No. 387/94
Number of pages - 4
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
DAVIES(1), BURCHETT(2) AND WHITLAM(1) JJ

CATCHWORDS

Immigration - entry permit - whether application for entry permit refused - whether an application for an entry permit which did not comply with reg.42(1B)(b) can be refused - whether application made in accordance with the regulations.

Migration Act 1958 (Cth) - ss.34, 37, 42
Migration Regulations - reg. 42(1B), 22

HEARING

SYDNEY, 10 June 1994
#DATE 10:6:1994

Counsel for the appellant: A.J. Young

Solicitors for the appellant: Newman and Associates

Counsel for the respondent: S.J. Gageler

Solicitor for the respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES and WHITLAM JJ This is an appeal from a judgment of a judge of the Court, Beazley J, in which her Honour dismissed an application for orders of review with respect to a decision refusing to grant an entry permit.

JUDGE2

BURCHETT J I have had an opportunity to read in draft the reasons of Davies and Whitlam JJ. Although prima face the words included in reg. 42(1B)(b)(ii), "the person asks the Minister in writing to be allowed to apply", point in favour of the appellant's submission, I agree that when the full web of sections and regulations is examined, it points the other way. The consequence is to shut the appellant out from getting any kind of hearing on the merits from anyone, and to do so purportedly on the basis that he has already had a hearing, which in reality he was denied. That is not something for which the statute and regulations dealing with migration to Australia can be praised, but the appeal must be dismissed.

1. The appellant, Iosefu Lesley Qalovi, is an illegal entrant and his entry permit was rejected under s.37 of the Migration Act 1958 (Cth), which provides inter alia:-
   

"(1) This section applies to an illegal entrant who: ...

(b) while in Australia, has been refused an entry permit; ..."

(2) Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:

(a) there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit ..."

The issue raised before the learned trial Judge and in this appeal was whether or not Mr Qalovi had previously been refused an entry permit while in Australia.

1. Mr Qalovi had, on 23 March 1992, made application for a December 1989 (temporary) entry permit. Regulation 42 of the Migration Regulations provided inter alia:-
   

"(1) Subject to sections 40 and 45 of the Act, a person is entitled to be granted an entry permit referred to in these Regulations if the person satisfies the prescribed criteria in relation to that entry permit.

...

(1B) The following criteria are prescribed in relation to December 1989 (temporary) entry permits and December 1989

(permanent) entry permits:

...

(b) in the case of an applicant who has been arrested under section 92 or 93 of the Act after 10 December 1990 - the applicant applied for the entry permit:

(i) not later than 2 working days after being so arrested; or

(ii) if, not later than 2 working days after being so arrested, the person asks the Minister in writing to be allowed to apply for the entry permit within 7 working days after being so arrested - not later than the expiry of those 7 working days; or ..."

Additional criteria for a December 1989 (temporary) entry permit, which I need not set out, were prescribed by reg. 131A.

1. The application was refused by an authorised officer, the manager, residence, Department of Immigration Local Government and Ethnic Affairs, Eastern Region NSW, on the ground that, as Mr Qalovi had been arrested on 25 November 1991 and did not lodge his application until 23 March 1992, he did not satisfy the requirements of reg.42(1B)(b). The officer did not go on to consider whether Mr Qalovi satisfied the criteria specified in reg.131A.

2. Mr A.J. Young, counsel for Mr Qalovi, has submitted that the decision of the officer was not a "refusal" for the purposes of the Migration Act and the Migration Regulations. He submitted that, as the application was not lodged within the time frame specified in s.42(1B)(b), the application was not a valid application and the officer had no jurisdiction to consider it. Mr Young relied upon the words in reg. 42(1B)(b)(ii):-
   

"... the person asks the Minister in writing to be allowed to apply for the entry permit ..."

and submitted that these words indicated that the provision specified a time limit within which an application for a December 1989 (temporary) entry permit could be lodged.

1. However, reg. 42(1B)(b)(ii) did not confer a discretionary power upon the Minister to allow a time for the making of an application for the entry permit. If the prescribed steps were taken and if the applicant satisfied the other prescribed criteria, then reg. 42(1) provided that the applicant was entitled to be granted the entry permit. Thus, Mr Young's point loses much of its force, though we acknowledge that there is a use of language in reg. 42(1B)(b)(ii) which supports his submission.

2. Other provisions of the Act and regulations put the matter beyond doubt. Section 34 of the Act provides inter alia:-
   

"(1) This section applies where, and only where:

(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and

(b) any fee payable in respect of the application is paid. ...

(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.

(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."

Regulation 22 provided inter alia:-

"(1) Subject to this regulation and regulation 34, an application for an entry permit is in accordance with these Regulations:

(a) where the applicant applies after entering Australia:

(i) if the application is in the form approved by the Minister for the purposes of this provision; and

(ii) if the relevant fee has been paid; and

(iii) if the applicant produces to an officer the passport or other document produced by the applicant for the purposes of his or her entry to Australia, or a valid travel document;.."

1. It follows that, as Mr Qalovi lodged an application for an entry permit in the form approved by the Minister, paid the relevant fee and otherwise complied with reg. 22, then, by virtue of reg. 22, Mr Qalovi made application for an entry permit "in accordance with the regulations". The Minister was therefore required by s.34 to consider the application and to either grant the entry permit under s.34(3) or to refuse it under s.34(4). The provisions contained in reg. 42(1B) were merely prescribed criteria to be taken into account in the consideration of the grant or refusal of the entry permit.

2. This is put beyond doubt by reg. 35AA(3) which provided:-
   

"(3) If the applicant for an entry permit is an illegal entrant who does not satisfy a criterion applicable to the applicant that is specified:

(a) in subregulation 42(1A); or

(b) if the entry permit is a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit, in subregulation 42(1B); the Minister must refuse the application."

1. In the circumstances which occurred, the Minister was bound to consider Mr Qalovi's application and, as Mr Qalovi did not satisfy the criteria in reg. 42(1B), he was bound to refuse it.

2. The authorised officer therefore correctly decided that Mr Qalovi's application of 23 March 1992 be refused.

3. In this circumstance, s.37 of the Act applied and, as there had not been a prescribed change in his circumstances, Mr Qalovi was not entitled to make a further application for an entry permit. There was no error in the decision rejecting the second application.

4. It was for this reason that the learned trial Judge dismissed Mr Qalovi's application for orders of review.

5. We would dismiss the appeal with costs.