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

[1993] FCA 1046

IOSEFU LESLEY QALOVI v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. NG649 of 1992
FED No. 1046/93
Number of pages - 5
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAZLEY J

CATCHWORDS

Immigration - application for December 1989 (temporary) entry permit - whether applicant has previously been refused an entry permit and thus not entitled to make further application - whether non-compliance with a prescribed time requirement renders application a nullity - meaning of "prescribed criteria"

Migration Act 1958 (Cth), s34, s37, s92,

Migration Regulations 1989, Pt3, reg22(1)(a), reg 34, reg40(1)(k), reg42(1B)

Acts Interpretation Act 1901, s13, s46

HEARING

SYDNEY, 9 September 1993

#DATE 22:12:1993

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Newman and Associates

Counsel for the Respondent: Mr S Gageler

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The Court Orders That:

1. The application for review be dismissed.

1. The applicant pay the respondent's costs.

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

JUDGE1

BEAZLEY J This is an application to review the decision of a delegate of the Minister made 1 September 1992 refusing the applicant a December 1989 (temporary) entry permit on the basis that the applicant was precluded from making an application for the entry permit by the provisions of s37 of the Migration Act 1958 (Cth) (the Act).

1. The applicant first arrived in Australia in January 1987 and held a temporary entry permit valid until March 1988. The applicant remained in Australia beyond the expiry of the permit and was arrested on 25 November 1991. On 23 March 1992 he made application for a December 1989 (temporary) entry permit pursuant to the provisions of reg42 of the Migration Regulations 1989 (the Regulations). On 15 April 1992 the applicant was advised by a delegate of the Minister that his application had been assessed but that he failed to satisfy the prescribed criteria for the grant of an entry permit, and accordingly, pursuant to s34 of the Act, his application was refused. The basis of the decision was that the applicant had not satisfied reg42(1B)(b) as, having been arrested under s92 of the Act on 25 November 1991, and not having lodged his application for permit until 23 March 1992, he failed to satisfy the prescribed criteria in reg42(1B)(b) that the application be lodged within seven (7) working days after the arrest. The delegate also determined that the applicant did not satisfy any of the other criteria in reg42, nor was he eligible for any other class of entry permit and thus could not be granted an entry permit under s34 of the Act.

2. It is not known what happened to the applicant thereafter, until he was arrested on 20 August 1992. On 27 August 1992, he again applied for a December 1989 (temporary) entry permit. This application was rejected on the basis that, pursuant to s37(2) of the Act, the applicant was not entitled to make any further application for an entry permit as he had previously made application for a permit and there had not been any prescribed change in his circumstances since that application. He was advised of this by letter dated 1 September 1992.

3. It is convenient at this point to refer to the relevant statutory scheme governing the grant of December 1989 (temporary) entry permits, as the applicant's case depends upon the operation of ss34 and 37 of the Act, having regard to the proper construction of the Regulations which governed both the 23 March 1992 and the 27 August 1992 applications. Section 34 of the Act provides:
   

"(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.

(2) Unless this section applies, the Minister:

(a) is not required to consider an application at all; and

(b) shall not in any circumstances grant an entry permit.

(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."

1. Section 37 provides:
   

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

(a) has entered, and remains in, Australia;

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

(c) is not a person to whom section 36 applies because of section 121.

(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; and

(b) no deportation order has been made in respect of that person under section 59."

1. Regulation 22 relevantly provides:
   

"(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. Regulation 34 provides:
   

"(1) Where an application for a visa or an entry permit is to be made in Australia in respect of a person in custody under the Act, the application must be lodged at an office of the Department by leaving the application at that office with a person employed at that office and authorised to receive such documents.

1. Regulation 40 provides:
   

"(1) For the purposes of paragraphs 36(1)(a) and 37(2)(a) of the Act, each of the following changes in circumstances is prescribed in relation to a person to whom section 36 or 37 of the Act applies:

...

(k) the person:

(i) was a prohibited non-citizen on or before 18 December 1989; and

(ii) was in Australia on, and has not left Australia since, 18 December 1989; and

(iii) has not previously applied for a December 1989

(temporary) entry permit or a December 1989

(permanent) entry permit; and

(iv) lodges an application for a December 1989

(temporary) entry permit or a December 1989

(permanent) entry permit and pays the fee in respect of the entry permit;...

1. Regulation 42(1B) provides:
   

"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...

1. The applicant was a prohibited non-citizen prior to 18 December 1989 within reg40(1)(k)(i) as he had not held a valid entry permit from March 1988.

2. The application raises a short point namely, whether the failure to comply with a time requirement in the Regulations renders the application a nullity such that it can be said that the applicant has not made a previous application for a permit for the purposes of s37. Counsel for the applicant submitted that the exercise of submitting the application form to the Department of Immigration on 23 March 1992 was, having regard to the time provision in reg42(1B)(b), "just a waste of time". It could never succeed. The application was, by force of the Regulation itself, an impermissible application as the time prescribed for lodgement had long passed at the time that it was lodged. Because the application was an impermissible application, it should be treated as a nullity and therefore the Minister was not required to consider the application under s34 at all. Accordingly, it was submitted s37(2) did not apply to the applicant as, in effect, he had not submitted an earlier application, so that the 27 August 1992 application could not be considered to be a "further application" for the purposes of the section. Alternatively, it was submitted that the applicant satisfied the prescribed criteria in reg40(1)(k) so as to satisfy the provisions of s37(2)(a) that there had been a prescribed change of circumstances. In this regard it was submitted that the reference in reg40(1)(k)(iii) to an applicant who had not "previously applied for a permit" involves a reference to an application which had been considered on its merits, and did not include an application which must be rejected because of a failure to comply with a time requirement of another Regulation.

3. In my opinion, the scheme of the Act is clear. Section 34 provides that an application must be either accepted or rejected depending upon whether the person is entitled to the grant of an entry permit of the class concerned pursuant to the provisions of the Regulations. However, s34 only applies where a person makes an application in accordance with the Regulations and pays any applicable fee: s34(1). Broadly speaking, an application for an entry permit is in accordance with the Regulations if it is in the approved form, the fee has been paid, and in the case of a person in custody, has been lodged at an office of the Department, which includes a detention centre: regs22 and 34. There is no evidence that the applicant complied with regs22 and 34. However, it can be assumed he did so as there was no issue as to non-compliance with either Regulation. Having thus made an application in accordance with the Regulations, then, subject to s37, the delegate was required to consider whether the applicant satisfied the prescribed criteria for an entry permit in the category for which he had made application. The Regulations contain a series of categories which a person will either satisfy or not, depending upon the circumstances. The purpose of the introduction of this scheme of categories and prescribed criteria was to minimise the extent to which discretionary considerations would govern the grant or refusal of applications for permits. Regulation 42 is contained within Pt3 of the Regulations. Part 3 is headed "Prescribed Criteria for Classes of Visas and Entry Permits". A heading to a Regulation is deemed to be part of the Regulation unless a contrary intention appears: ss13 and 46 of the Acts Interpretation Act 1901. No such contrary intention appears in the case of Pt3. Not only do the words "prescribed criteria" appear in the heading, reg42 specifically states that a person is entitled to the grant of a permit referred to in the Regulations if the person "satisfies the prescribed criteria". The words "prescribed criteria" are words of ordinary English meaning. Prescribe means "to lay down...as a rule or a course to be followed...to lay down rules, direct or dictate." A criterion is "a standard of judgment...an established rule or principle for testing anything". (The Macquarie Dictionary). The legislature has seen fit to make a time requirement part of the prescribed criteria in reg42(1B)(b). This is neither unusual per se, nor is it unusual within the scheme of the legislation. It is part of the prescribed criteria in other Regulations: see reg44A, as well as within reg42 itself: see reg42(1A)(a), (b), (c) and (d). It is not correct to say therefore that an application which is refused because of non-compliance with a time provision is a "nullity". Nor can it be said if an application is rejected because of a failure to satisfy a prescribed time criterion that the application has not been considered. A consideration of such an application results in its rejection because of a failure to comply with the prescribed criteria in the relevant Regulation.

4. There is another problem with the submission that the application was not considered on its merits. The delegate also considered whether the applicant was entitled to an entry permit on any other basis and concluded that no other basis was apparent on the material lodged in support of the application. Therefore, it cannot be said that there was no consideration of the merits. Accordingly, the submission that the application was a nullity as it was not considered on its merits, must fail.

5. Alternatively, it was submitted by the applicant that the 1989 Regulations were designed to achieve two aims;
   

"(a) to prevent applicants from making a (sic) further applications for entry permit when previous application(s) had already been considered and rejected; and

(b) to require applicants to put all of the grounds relied on for a December 1989 permit under Regulation 131A which covers numerous grounds in the one application."

1. It was submitted that therefore the proper construction of reg40(1)(k) was that if a person had been automatically rejected for an earlier permit, the provisions of subpar(iii) meant that there had been no previous application for a December 1989 (temporary) entry permit.

2. In my opinion, this is but another way of putting the applicant's first argument. The requirements of the Regulations under consideration are clear and unambiguous. When an application has been made for a temporary entry permit under reg42 and has been rejected for non-compliance with any of the relevant prescribed criteria in that Regulation, the Minister has no discretion. He must refuse to grant the entry permit pursuant to s34(4). The applicant therefore had no entitlement to make a further application for an entry permit by virtue of the provisions of s37 of the Act. Accordingly the orders which I make are:
   (1) Application for review dismissed.
   (2) The applicant to pay the respondent's costs.