Rasila, A.D. v Minister for Immigration, Local Government and Ethnic Affairs

[1991] FCA 494

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY	) NO. VG 204 of 1991
GENERAL DIVISION	1

Between: ATECA DISAVE RASILA

Applicant

and:

LOCAL GOVERNMENT h ETHNIC

AFFAIRS

Respondent

EX TEMPORE JUDGMENT

Einfeld J Melbourne 6 Aucrust 1991

This matter originally came before the Court as an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of what are said to be two decisions. One was made on 7 June 1991 to arrest and detain the applicant at the Maribyrnong Detention Centre; the second is alleged to have been made on 11 July to refuse the applicant's application for permanent residence. Within the application

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. for judicial review, a notice of motion was filed and made returnable eventually today, seeking on behalf of the applicant orders that the applicant be released from the custody in which she has been for some two months and for an injunction to restrain the execution of a deportation order.

delegate of the Minister for Immigration signed a deportation order, but this deportation order did not come to the

The application for order of review was lodged with the Court on 25 July 1991. It seems that later on the same day, the

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attention of the applicant or her advisers until after the	t
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application for order of review and the notice of motion were
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filed. The consequence was that the notice of motion does not in terms seek an injunction against this particular	1. .
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deportation order but seeks an injunction in general terms	i I
restraining the respondent from deporting the applicant from	I
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Australia as well as from continuing to detain her.
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When the notice of motion was called on this morning, the respondent minister sought a hearing, in the first instance and separate from and before a hearing on the merits of the injunctive relief sought, on the question as to whether the applicant could make out an arguable case for relief in the application for review. The contention on behalf of the minister was that in accordance with long standing general authority on interlocutory relief, the applicant had first to establish that there was a serious issue to be tried on the primary matter before the Court. I am not sure that in the context of release from custody this is the appropriate legal principle but because of the lateness of the hour and the shortness of time available, I will proceed on this basis as	far as possible.	l '
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The argument on behalf of the minister was that it could	i
easily be shown by reference to the relevant sections of the	1,.
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statute and the regulations that the applicant could not	1
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establish an arguable case.	Therefore, it was said, the Court

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should not entertain, or if entertain, not grant the applications for injunctive relief sought in the notice of motion. In the way in which this argument was put on behalf of the minister, it became clear that what was really being submitted was that there should be a summary dismissal of the application for order of review. This is because in substance the consequence of upholding the minister's proposition would have been that the Court had expressed itself as being satisfied that the applicant could not establish an arguable

basis for relief in the primary proceedings. I

Although this would be at best a rare procedure for an application for judicial review, the confidence expressed by the minister's legal representative in the argument caused me to agree to examine this issue first. In the circumstances I decided that the quickest and most expedient method of considering the matters in issue was to hear the minister's representative first. This was because otherwise it would have been necessary for the applicant either to speculate on

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what the case was or attempt to explain what she thought the

me that this would be a futile expenditure of time and that respondent wanted to put in this regard. The complexity of the Migration Act and the Migration Regulations suggested to

the more expedient course was to hear the minister first as to why a serious triable issue did not arise under the application for review. This of course would have been the procedure if, in formal terms, there had been a motion for the summary dismissal of the application. In due course, in order to maintain the fairness of the procedure, the minister's

legal representative was given a right of reply to the answer
given by the applicant.

As I probably should have guessed from previous experience, there is nothing existing in our community these days like a simple immigration case. I will not now seek to set gut the complete argument put in this regard by the respondent Pecause

I have decided that there do arise in this matt

sufficiently serious issues to be tried as to provide	e[r some
for the interlocutory relief.	B basis

It will suffice for present purposes to indicate some of the issues.. that arise for consideration. First the relevant facts. The applicant entered Australia on 29 September 1983 when she was granted a 3 months temporary entry permit. She has been here ever since. Prior to the expiry of the three months, she sought an extension of the then entry permit but this was refused and she was requested to leave Australia at

the end of the initial three month period. On 24 March 1990,

under the new legislation which was passed in 1989, an the applicant made an application for what is now called, extended eligibility temporary entry permit. On 18 October

1990, she was advised by the department that she was not entitled to make this application by reason of the operation of section 37 of the Migration Act.

Section 37 applies to a person, now called an illegal entrant, who has overstayed an initial permission to be in Australia and has been refused an entry permit whilst in Australia. Subsection (2) of section 37 provides that such a person, that is an illegal entrant who while in Australia has been refused an entry permit, is not entitled to make any further application for an entry permit while remaining in Australia unless inter alia there has been a "prescribed change" in the person's "circumstances" since last applying for an entry permit. According to a chronology handed to me by the respondent, this subsection was the one relied upon by the

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department in declaring in October 1990 that the applicant's March application for the extended eligibility temporary entry permit was not available to her.

The applicant was arrested on 15 June 1991 and has, as I am informed, been in the detention centre ever since. On 7 June she applied under regulation 42 of the Migration Regulations for an extension of time within which to make an application for a further entry permit, and this extension was granted.

, ,	According to that regulation, once an extension is asked for
and providing it is asked for not later than two working days
after being arrested, the applicant must apply for the entry
permit being sought not later than the expiry of seven working days after being arrested. 1 am informed that those seven working days expired in this case on 17 June 1991.
There is some material before me suggesting that a departmental officer advised the applicant's legal representative that the last day for the lodgment of the application for a temporary entry permit was 18 June. This material reveals, however, that when the applicant's legal representative attended at the office of the Department of Immigration on 18 June for the purpose of lodging an application for an entry permit on behalf of the applicant, the department said that the application could not be accepted
because it was out of time. This application S U ht a 99
category of entry permit which the applicant's! legal

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representatives now admit is not appropriate or avail le to

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her circumstances. l

On 20 or 21 June the applicant lodged an application for permanent resident status. It is not certain from the evidence whether there was also lodged at this time an application for a temporary entry permit but it seems quite possible that there was. There seems to be some factual dispute as to whether either or both of these applications were in fact accepted and received by the department. But on a prima facie basis the material before me suggests that they

were accepted and considered. It appears to be the case that	application fees amounting to $360 were in fact lodged with
one or other of these applications and banked by the department, although in the light of the refusal of the applications, either the $360 has been refunded or the department concedes that it should be refunded.
Thus the first contention by the respondent that the
applicant's applications for resident status or permission to
remain here were out of time as prescribed by regulation 42 is
answered by the applicant effectively in three parts. One is
that the department in fact considered and decided on the
merits of the applications despite the supposed time bar. The
second is that by those decisions and considerations, the
department either waived the time limit or is estopped from
relying upon it as a means of defeating the applicationg. The

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third is that the lateness occurred because of thy false

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advice of the department and that this should vitiate afy such

ground of rejection. I

This is relevant for a number of reasons, but I shall satisfy present needs by relating only one. Because section 37 requires as a prerequisite to the acceptance of a second or succeeding application after a previous one has failed, the need for what is described as a "prescribed change in circumstances", it is necessary to consider what the legislation provides by way of a definition of this term. One of the definitions is that the person satisfy under regulation

words that are not relevant now - "for the grant of a December 40(l)(k) what are described as "criteria" - and I omit some	1989 temporary entry permit". At least one application for a
temporary entry permit lodged with the department on or after 18 June appears for various reasons - which I will not now examine in detail - to be asking for a December 1989 temporary entry permit.
A number of criteria are provided in the regulations for such
a permit. Among them are the time limits to which I have already referred, and the need to establish that pursuant to regulation 131A(l)(d)(v):

there is any other compassionate ground for the grant of an entry permit to the effect that refusal to grant the entry permit would cause extrqe hardship or irreparable prejudice to an Australian citizen or Australian permanent resident.

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This applicant alleges in her application for order of review i

that such circumstances exist. I note that in the applicant's application for this type of entry permit on a form provided by the- department, compliance with regulation 131A is stated in the following terms:

Compassionate circumstances of such magnitude that rejection of your application would create extreme hardship or irreparable prejudice to the interests of an Australian citizen or permanent resident.

There are significant differences between the terms used in

the form is intended to be based. It was the latter which the	the form and the terms of the regulation on which, presumably,
applicant indicated on her form was the basis or one of the bases upon which she was seeking a temporary entry permit. Why these forms of language are different is a matter secreted in the thought recesses of those responsible for their formulation. That there is a difference may not be an unimportant factor to be considered.
The applicant thus answers the respondent's attack on the application for ordez of review by saying that, overlooking the time criterion, the department considered and decided the applications made by the applicant. In at least one document emanating from the department, it even made findings on the facts. These findings were supplied to the applicant l with a covering letter in which appear the words:

Attached i s a resume of t h e Departmental f i n d i i g s

upon which t h i s d e c i s i o n was based .

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Thus the applicant's argument is that having waived the time

requirements and gone on to decide whether the provisions of

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131A(l)(d)(v), concerning the compassionate or humanitarian ground for the grant of an entry permit to which I have earlier referred, had been made out, the respondent is now estopped from asserting the time requirements as a bar to the relief sought. If this is so, the argument goes, and this part was not denied by the respondent, the decision on the compassionate ground is exposed for judicial review. The

respondent's case is that it is not necessary to go to that	aspect because the time limit provision of regulation 42 was
clearly not complied with.
As a matter of fact, during the course of argument the respondent said that the new scheme, as embodied in the 1989 amendments to the Migration Act and the 1989 regulations, was designed to exclude judicial review and the exercise of discretions in the vast majority of cases, and to substitute a

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series of absolute criteria which were either complied with or not. If so, the rash of cases now before the Court seems to suggest that this intention was not achieved.

I am not able to share the confidence or degree of certainty

that the respondent's argument on the time question ~ u s t so

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necessarily be successful that I could not find that there was

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at least an arguable case to be tried. The ques$ion of

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whether the department can waive the time limits in re lation 42 is not a simple issue. It is certainly not qn easy 'T

question to determine whether the minister can be estopped from asserting the statute bar to this application either in general principle or on the particular facts of this case. Apart from these questions of law, it would be necessary to consider precisely what happened and what evidence there is in relation to the alleged error as to the time available. An issue may also arise, if this matter were found in favour of the applicant, as to the effect of departmental error of this kind, especially as the application lodged a day late was in

circumstances. any event apparently inappropriate for the applicant's

Of course, I am in no position to decide those matters at all

as I have heard no evidence on the subject. If it were to be true, it would be an inhumanity of not insignificant proportions if the actions or words of a departmental officer that were wrong, albeit accidentally, could deprive someone of being able to argue that there existed compassionate

circumstances for the granting of an entry permit. Especially might this be so as the compassionate ground referred to in regulation 131A(l)(d)(v) involves the concept that extreme hardship or irreparable prejudice would be caused to an Australian citizen.

To say the least, matters of such importance and complexity

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cannot be dealt with on a summary basis. Such matters will

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need close and careful consideration, and cannot be dec,ided in I the course of an interlocutory proceeding when the evidence has not been heard, and full argument, supported by authority, has not been presented.

I make no finding at all that this application for an order of review will or should succeed. To the contrary - on paper

l	I	even the central, compassionate, issue does not provide the applicant with a strong case. In this regard, I take the respondent's point that the assertions of the so-called compassionate circumstances in the application for order of
review may not entitle the applicant to a finding that the respondent's decision on that matter is tainted by relevant legal error.
But that is not a matter which I have to decide now. It suffices for present purposes if I merely say and find that in my view there are sufficiently serious and complex issues to be tried in this application for an order of review as to dissuade me from preventing the applicant seeking to obtain the interlocutory relief sought in the notice of motion.

I certify thai t h ~ s	and the	6
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p reced~ng pages a r e a true c o p y of t he 5

Reasons for Judgment herem of his Honour $

Jus !~ce E,nfeld