Re Coyle

Re: SUNIL CHAND
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G 647 of 1992
FED No. 161
Number of pages - 9
Administrative Law
(1993) 30 ALD 777 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Davies(1) and O'Connor(1) JJ.

CATCHWORDS

Administrative Law - Immigration - application for entry permit lodged without prescribed fee - whether Minister estopped from relying upon strict compliance with the Act and regulations.

Angus Fire Armour Australia Pty Ltd v. Collector of Customs (NSW) (1988) 83 ALR 449

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) s.92

Migration Regulations (Cth) reg. 42

HEARING

SYDNEY, 22 February 1993

#DATE 26:3:1993

Counsel for the appellant: Mr P. Roberts

Solicitors for the appellant: Rooney and Heazlewood

Counsel for the respondent: Mr A. Robertson

Solicitor for the respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

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

JUDGE1

KEELY, DAVIES AND O'CONNOR JJ. This is an appeal from an order of a single judge of the Court, Hill J., in which his Honour dismissed an application brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), but ordered that the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, pay the appellant's costs of the proceedings.

The appeal, brought by Mr Sunil Chand, the appellant before the learned trial Judge, is a strange one, for counsel appearing before his Honour, Miss C.E. Adamson, ultimately conceded to his Honour that the application must fail and she did not press it, save to ask that an order for indemnity costs be made in favour of her client. Miss Adamson said:-

".... I have no choice but to seek an order for indemnity costs against the respondent in respect of this application which has been rendered futile and a waste of everyone's time by its conduct in the course of the litigation."

The appeal has nevertheless been brought on the ground that the trial Judge was in error. The notice of appeal raises the following grounds of appeal:-

"3.1 That His Honour erred in failing to hold that the appellant was entitled to have his application for an entry permit considered.

3.2 That His Honour erred in holding that the appellant had not satisfied the criteria in regulation 42 of the Migration Regulations, 1989.

3.3 That His Honour erred in failing to hold that the appellant had satisfied the relevant criteria in regulation 42 of the Migration Regulations, 1989. 3.4 That His Honour erred in the construction of regulation 42 of the Migration Regulations, 1989. 3.5 That His Honour erred in failing to consider the effect of the Departmental document given to the appellant which set out relevant dates. 3.6 That His Honour erred in failing to hold that the respondent was estopped from asserting that the time period under regulation 42 of the Migration Regulations ran from 21 January 1991, having informed the appellant that 22 January was the relevant time."

His Honour did not rule upon and was not asked to rule upon any of the matters set out in these grounds.

Mr Chand, who was an illegal entrant, was arrested under s.92 of the Migration Act 1958 (Cth). Regulation 42 of the Migration Regulations provided inter alia:-

"42.(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 working days;

..."

It will be noted that these provisions specified a tight time frame, operating from the date of arrest, within which the entry permit applied for must be lodged.

The entry permit for which Mr Chand applied was refused on the ground that his application had been lodged out of time. This refusal was the subject of the proceedings brought before the trial Judge under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
When the matter came on for hearing before the trial Judge, his Honour asked when Mr Chand had been arrested. Counsel for the Minister, Mr G.M. Elliott, responded that it was 21 January 1991. That led Miss Adamson to inform his Honour that, at a directions hearing, when Mr Elliott had been asked on what bases the respondent proposed to support the decision under challenge, only two bases had been mentioned. The first was that, as there was a fee payable on the lodgment of an application for an entry permit, an application was not validly lodged until the fee was paid, and that in Mr Chand's case, the fee was not paid within the time frame specified by reg.42(1B). Secondly, it was said, the grant of relief would be a futility as Mr Chand did not satisfy the requirements for the entry permit.
At that point, Mr Elliott conceded that the only issues which he wished to raise were whether Mr Chand's application for an entry permit had been lodged when it was received or later when the fee was paid and whether, even if Mr Chand had complied with reg. 42, he would have satisfied the other requirements for the entry permit for which he had applied. Mr Elliott said that the arrest took place on 21 January 1991, but he did not wish to argue that point.
The trial Judge informed counsel that that approach could not be taken. If, as indicated by the evidence upon which the parties proposed to rely, Mr Chand had been arrested on 21 January 1991, then reg. 42 had not been complied with, for no formal step had been taken until 24 January 1991, a lapse of three days, not of two. His Honour said that, if this were the position, the matters which counsel wished to argue did not arise. His Honour said that the starting point for reg. 42 was the date of arrest and that that date had to be established either by agreement or evidence.
In this respect, his Honour was clearly correct, for he could not make a decision as to whether Mr Chand's application had complied with reg. 42 unless the date of arrest was established. The two issues which counsel wished to argue before his Honour had not been set aside for separate determination and had to be considered in the context of the issue respecting compliance with reg. 42. No judgment could be given as to such compliance without there being a finding as to the date of arrest, a finding which could not be made in the absence of agreement or evidence on the point.
Mr Elliott declined to concede that the arrest had occurred on 22 January 1991. There followed this passage between Miss Adamson and his Honour:-

"MISS ADAMSON: The applicant has proceeded on the basis that the respondent would by reason of the statement made at the directions hearing make that concession. HIS HONOUR: It may well be that that affects costs. I have no doubt about that. But I cannot - I just do not think it is - it makes no sense to proceed on a basis that it is false. MISS ADAMSON: If the respondent does not make that concession, then there is nothing I can say against what your Honour has put to me in that the regulation is clear and mandatory as to those clear working days. So, if the arrest took place on the 21st, it is true to say that the applicant's solicitors did not make an application for an extension until the 24th.

HIS HONOUR: That is critical, is not it? It is critical that the matter be determined one way or the other as to what day the arrest occurred. If it is not conceded. Otherwise we are just wasting time."

Mr Elliott then read an affidavit of Peter Gordon Mitchell, an officer of the Department of Immigration, Local Government and Ethnic Affairs, sworn 20 May 1992, in which Mr Mitchell deposed that the arrest had occurred on 21 January 1991. Miss Adamson said to his Honour:-

"Your Honour, I regret to say that I do not have an answer to this affidavit .."

It was then that Miss Adamson indicated that she had no choice but to seek an order for costs.

His Honour was correct in insisting that the date of arrest be established, for that was an essential element in the issue before his Honour. His Honour did not rule how the date should be established, indicating that it could be established by agreement or evidence. The possible application of a principle of estoppel was mentioned to his Honour, but Miss Adamson did not pursue this. The date of arrest was, by evidence, proved to be 21 January 1991, thereby making it futile to consider the other issues which counsel had wished to debate before his Honour.
Before this Court, Mr P. Roberts, counsel for Mr Chand relied upon two grounds of estoppel. The first was founded on a notice dated 22 January 1991, which Mr Mitchell had signed and had handed to Mr Chand's solicitor on that day. The notice said in part:-

"You are advised that after 2 or 7 working days as the case may be from 22/1/1991, being the date you were first arrested under the Migration Act 1958 ("the Act"), it is intended to refer your case to the Minister or a delegate of the Minister to consider the question of the exercise of the following powers:

(a) the making of a requirement to leave Australia (subsection 82(1) of the Act), or

(b) the making of a deportation order against you. You should advise me immediately and give details in writing if any of the following circumstances apply: ....

If you do not reply by the end of the second working day after you were first arrested under the Migration Act, it will be assumed that none of the above circumstances apply to you."

In evidence, Mr Mitchell explained that the date, 22/1/1991, stated in the first paragraph of this notice, had been written in error.

Attached to that notice were explanatory notes relating to aspects of the Migration Act which included the following paragraphs:

"3.4 If you want to make an application to remain in Australia, you should do it now. Any entry permit application you make must be on the proper form. You must also pay the prescribed processing fee and produce the passport you used to enter Australia. If you have been arrested under the Act this must be done WITHIN 2 WORKING DAYS OF YOUR ARREST OR WITHIN THOSE TWO DAYS OF ARREST you can ask in writing for an extension of time of five (5) working days. If you ask for this extension, you have a total of seven (7) working days from the date you were arrested to lodge any application allowed by the Act. 3.5 If you do not lodge your application within two (2) or seven (7) working days as the case may be of the date of your first arrest, you cannot be granted an entry permit."

Mr Roberts has submitted that, when the solicitor for Mr Chand requested on 24 January 1991 that there be an extension of time to make an application for an entry permit and when later he lodged the application for an entry permit, though without accompanying it with the prescribed fee, he was acting in reliance upon Mr Mitchell's notice of 22 January, and that therefore the Minister was estopped.
This contention fails, however, for several reasons. In the first place, the general principle is that, whilst a statement by an officer of the Commonwealth may serve to waive a statutory requirement which is directory only, it will not serve to confer upon the Minister a power which the statute omits. As the Migration Act and the regulations state the conditions upon which an entry permit may be granted, the Minister is not empowered to grant an entry permit in circumstances which are otherwise than in accordance therewith. Mandatory requirements may not be waived; see Formosa v. Secretary, Department of Social Security (1988) 81 ALR 687; Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193 at 207-218; Roberts v. Repatriation Commission (Black C.J., Gray and Ryan JJ., unreported 22 December 1992). This was, of course, accepted by Miss Adamson for she did not argue to the contrary before the trial Judge.
Secondly, it was not foreshadowed to his Honour that there was evidence from Mr Chand or his solicitor which stated in terms that either had been misled by Mr Mitchell's notice of 22 January 1991, or as to what was the representation which had misled; whether it was a representation that the arrest had occurred on 22 January 1991 or that the relevant 2 and 7 working days for the taking of steps to obtain an entry permit ran from that date. No evidence was before his Honour, or before this Court, that either Mr Chand or his solicitor understood the date of arrest to be other than 21 January 1991. Yet, a perusal of the notice of 22 January 1991 and of the accompanying notes should have made it clear to the solicitor that the 2 and 7 day steps had to be taken within a period commencing from the date of arrest.
Thirdly, estoppel was not raised before the trial Judge as an issue for his decision.
Mr Roberts also alleged that an estoppel arose from what had been said at the directions hearing preceding the trial as to the issues which would be raised at the trial. However, the statement made at the directions hearing was based upon the incorrect assumption that it was not necessary for the Court to have the date of arrest established. It therefore could not bind the Court or either party at the trial itself. It was not put to his Honour, as an issue for his determination, that Mr Elliott had undertaken to concede that the date of arrest was 21 January 1991 and was estopped from acting to the contrary. Before his Honour, Mr Elliott stated that he had never agreed to concede that point and Miss Adamson choose not to contest Mr Elliott's statement.
The grounds raising the issue of estoppel therefore fail.
Mr Roberts submitted in the appeal that the view expressed by his Honour, that the date of arrest should be established, took counsel by surprise and that his Honour should therefore have granted an adjournment to enable Miss Adamson to call evidence to meet the point. However, Miss Adamson did not request an adjournment. She was counsel for Mr Chand and was the person to seek an adjournment if one was required. From a reading of the transcript, it would seem that Miss Adamson and her instructing solicitor realised, even before the hearing commenced, that if the date of arrest became an issue, then Mr Chand's application to the Court must fail. Miss Adamson, who had apparently hoped that Mr Mitchell's notice of 22 January 1991 would go into evidence and would be evidence to the Court that the arrest occurred on 22 January 1991, realised that if Mr Elliott read Mr Mitchell's affidavit, the true date of arrest would be established, as it was. Miss Adamson appears to have accepted what the consequences would be in that event and, therefore, contented herself with seeking an order for costs.
There is no evidence from Miss Adamson or Mr Chand's solicitor, or otherwise, that Miss Adamson was not given a full and fair opportunity to put any matter that she wished to put on behalf of her client or that she failed to put some vital matter because she was taken by surprise. In the circumstances, it is clear that there was no failure on the part of the trial Judge to provide natural justice.
Counsel for the respondent, Mr A. Robertson, has asked the Court to rule in the respondent's favour on the two points which counsel below had sought to have the trial Judge consider, but which it did not become necessary to consider because of the date of the arrest. It would be imprudent to make any observations as to the effect of the failure of Mr Chand's solicitor to accompany the application with the prescribed fee, particularly as there is already a decision of a Full Court of this Court, in Angus Fire Armour Australia Pty Ltd v. Collector for Customs (NSW)(1988) 83 ALR 449, on an analogous issue. The date when a person applies for an entry permit or lodges an application for an entry permit is primarily a question of fact, and therefore is not a matter which an appellate court ought to consider absent findings of fact by a trial Judge.
The second submission in which counsel sought to interest this Full Court was that Mr Chand's application for a permit was futile, for he did not meet the substantive requirements of the Migration Act and regulations. However, the determination of such a matter is reposed in the first instance in the Minister and his delegates. The application for the permit was not refused on that ground, but solely on the ground that Mr Chand had not complied with reg. 42. In this circumstance, if the matter is to be considered, it should be considered in the first instance by the Minister or a delegate.
The appeal should be dismissed with costs.

[1993] FCA 161

26 MARCH 1993