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

[1992] FCA 695

Re: IOSEFO LESLEY QALOVI
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G649 of 1992
FED No. 695
Immigration
(1992) 28 ALD 488 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Immigration - construction of ss. 34 and 37 of the Migration Act - whether an application which could not be entertained under the Regulations was "refused" within the meaning of s. 37 so as to bar any further application - question sufficiently arguable to justify interlocutory relief.

Migration Act 1958, ss. 34 and 37

Migration Regulations 1989, regs. 40(1)(k) and 42(1B)(b)

HEARING

SYDNEY

#DATE 1:9:1992

JUDGE1

In this matter, the applicant, Mr Qalovi, seeks interlocutory relief to restrain his being deported pending the hearing of an application for judicial review of a decision made under the Migration Act 1958 refusing an entry permit. The affidavit in support of the application reveals that the applicant is presently detained in custody at the Villawood Detention Centre following his arrest on 20 August 1992. He had previously been in custody for a period extending from some time in November 1991 to some time in April 1992, when he was released upon certain conditions including the deposit of a cash sum of $10,000 and a requirement of daily reporting. The evidence is that the conditions were strictly observed.

1. The applicant took such steps as were open to him with a view to obtaining an entry permit under what he believed were concessions available. What has been referred to as an "application" made by him during the period of his first arrest, on 23 March 1992, was the subject of a decision made on or about 15 April 1992. By virtue of that decision, he was unsuccessful in obtaining an entry permit. After his second arrest, he lodged an application for an entry permit within the time limit provided by regulation 42(1B)(b) - which prescribes a period of two working days after an arrest, with a provision under certain circumstances for extension of that two days period to seven working days.

2. However, the applicant's application on that occasion was rejected on the ground that s. 37 of the Migration Act applied - see s. 37(1)(b) by virtue of which the section applies to an illegal entrant who, "while in Australia has been refused an entry permit". It was also contended that regulation 40(1)(k) of the Migration Regulations 1989 applied to prescribe that it was necessary that the applicant be a person who "has not previously applied for a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit", and that the applicant had previously so applied by virtue of the request made by him on 23 March 1992, to which I have earlier referred.

3. The earlier request was refused, if that is the correct term, on the ground that the applicant did not satisfy regulation 42(1B)(b) as "this application was lodged on 23/3/1992, more than seven working days after his arrest." It is arguable that reliance was also placed by the decision- maker on paragraph (c), but the terms of the decision are definite in denying the satisfaction of paragraph (b), while they make merely a submission that paragraph (c) was not satisfied. Regulation 42 is a regulation which is headed "Prescribed criteria - entry permits".

4. Section 34 of the Act provides in subs. (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

... ."

Subsection (2) then provides:

"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."

1. It seems to me that prima facie what I might call the first request for an entry permit was rejected by virtue of those provisions. That is to say the decision maker found that the application was not made in accordance with the regulations, and that therefore it was not required to be considered at all, and could not in any circumstances be granted. It was not in accordance with the regulations because it failed to comply with regulation 42(1B)(b). For some reason which escapes me the decision maker also set out - and this could only be liable to lead to confusion on the part of any applicant - that he did not satisfy paragraph (a) of the same regulation. It is, of course, obvious that he could not satisfy that paragraph, since it did not apply to him, being applicable only "in the case of an applicant who has been arrested under s. 92 or 93 of the Act on or before 10 December 1990".

2. The legal question exposed by these circumstances is whether the prohibition contained in s. 37 applied to the applicant when he made his application within time following his second arrest. The department says that he was then a person who fitted the description in s. 37 of a person who "has been refused an entry permit". But this was because his previous application had not complied with the regulations, being out of time, and was unable to be considered at all. If the department's argument is correct, the Act contemplates a situation which W. S. Gilbert would have delighted to satirize. Having made an application which could not be considered, the applicant thereby deprived himself of the right on a later occasion to make an application which could have been considered. On neither occasion has the applicant's position been able to be considered on the merits, because on each occasion it was technically inadmissible.

3. Of course, if Parliament has so provided the law must be applied, but at least two matters would have to be considered first. On the one hand, looking at the matter as a strict question of technical verbal construction, it must be asked whether a man whose application is expressly not required to be considered, and is expressly stated not to be capable of being granted, can be said to be a man who "has been refused an entry permit", or whether he is rather a person who has not been permitted to apply for one. On the other hand, if the matter is looked at, not in terms of strict textual construction but in terms of an attempt to understand what might be thought to have been the true intention of the legislature (though, of course, the search must be for an intention expressed by the words it has used), it is difficult to imagine any actual intention on the part of the legislature to provide that an attempted application, to which it has expressly denied any effect, should nevertheless by its very voidness operate as a refused application for the purpose of barring any further application. It may be thought that the true justification of s. 37 is that someone who has had his application actually considered, and its merits assessed, may properly be denied an opportunity to force a further application upon the Minister requiring reconsideration of the very same merits. That this is the intention might be thought to be consonant with the provisions of regulation 40(1)(k) which might be thought to refer to an application which, being open, was actually made and considered. For these reasons it seems to me there is a sufficient case here to justify the grant of interlocutory relief pending a full hearing and argument.

4. The Court orders that until further order the Minister and his officers be restrained from taking any step to implement the deportation order referred to in the application.

5. Upon condition that the applicant reports twice a week on Mondays between the hours of 9.00 am and 1.00 pm and on Fridays between the hours of 2.00 pm and 4.00 pm to the officer in charge of the compliance section of the Department of Immigration, Local Government and Ethnic Affairs at 88 Cumberland Street, and having accepted the undertaking which has been given to the Court, and upon the further condition that within 24 hours the guarantee previously given is reinstated, I order that the applicant be released forthwith and remain at liberty until further order pending the decision in the application. I reserve costs.

6. I direct that within 14 days the applicant have inspection of the relevant portions of the file of the department with liberty to make copies and within 21 days from today's date the applicant file and serve any amended application and any affidavits on which he intends to rely at the final hearing. I direct that the department have a further 14 days to file any affidavits on which it intends to rely at the hearing, and I will put the matter in for further directions on 7 October at 9.30 am.