Re Trent, H.c. v Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 166
•29 MARCH 1993
Re: HARVEY CLAY TRENT
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G263 of 1990
FED No. 166
Number of pages - 28
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Ryan J.(1)
CATCHWORDS
Immigration - illegal entrant - effect of amendment to Act after application for visa - whether illegal entrant entitled to entry permit after entry - if not so entitled effect of alleged mistakes by Delegate of Minister in considering other matters - deportion
Administative Decisions (Judicial Review) Act 1977 (Cth) - ss 13,16
Migration Act 1958 (Cth) ss 13, 14(2), 20, 34(4), 60, 92
Migration Legislation Amendment Act 1989 (Cth) S.6
Migration Regulations Reg. 35 AA, 42, 126, 179
Lamb v Moss (1938) 49 ALR 533
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681
R v Wallis, ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
HEARING
MELBOURNE
#DATE 29:3:1993
Counsel for the applicant: Mr B. Keon-Cohen
Solicitor for the applicant: Erskine Rodan
Counsel for the respondent: Mr R.R.S. Tracey
Solicitor for the respondent: Australian Government Solicitor
ORDER
1. That the application be dismissed.
2. That the applicant pay the respondent's costs of the
application, including any reserved costs, such costs to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
RYAN J. This is an application for review of four decisions made by or on behalf of the respondent pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act").
The relevant facts in this matter are complex and need to be considered in some detail.
BACKGROUND FACTS
3. The applicant is a citizen of the United States of America who married an Australian citizen in Los Angeles on 24 August 1989. On 18 December 1989, he attended the Australian Consulate in Los Angeles, where he applied for a visa by filling out a standard form headed "Application to visit Australia". Two of the answers given by the applicant on that form are of relevance in the context of the present proceedings. First, the applicant, in response to a question requiring disclosure of "previous or alternative names", answered, "none". Secondly, to the requirement that details of convictions of criminal offences committed in any country be given, the applicant responded, "12 years ago possession of amphetamines USA LA".
Doing the best that I can from the mass of confusing and inadequately explained material before the Court, it appears that the applicant, was, in fact, convicted in the United States on numerous occasions between 1975 and 1978. In late 1974, he was arrested on charges relating to transportation and sale of drugs, and was apparently convicted and sentenced to 83 days imprisonment and put on five years probation. The applicant was further sentenced for 30 days imprisonment in 1978 for breach of that probation. In March 1975, the applicant pleaded guilty to a charge of carrying a concealed weapon, for which he was placed on probation for 18 months and fined $50. In May 1976, he was convicted of robbery of a business, and sentenced to 365 days imprisonment with 60 months probation. After receiving credit for 160 days, on account of time spent on remand and good behaviour, the applicant served 205 days imprisonment. In June 1978, he was sentenced to five days imprisonment, with 12 months probation, on a charge of possession, manufacture or sale of a dangerous weapon. The applicant's criminal record, which has been provided by the Federal Bureau of Investigation, reveals that between 1974 and April 1988, the applicant was arrested or taken into custody on some 13 occasions.
It is common ground that, at least during the period from 1980 to 1981, the applicant occasionally used a number of aliases, including "Terry Blunt", "Clay Harvey Wagoner" and "Harvey Clay Wagoner". These aliases were apparently assumed by the applicant when purchasing marijuana or amphetamines.
The application form filled out by the applicant at the Australian Consulate in Los Angeles shows that an authorised officer of the respondent approved the applicant's request for a visa on 18 December 1989, without requiring the applicant to attend an interview. The visa, endorsed upon the applicant's passport, granted the applicant the right to stay in Australia for six months, subject to the grant of an entry permit upon arrival. The applicant arrived in Melbourne on 24 December 1989, at which time his passport was duly endorsed with a six month temporary entry permit.
Four days after the expiry of the temporary entry permit, on 28 June 1990, the applicant applied for an Extended Eligibility Temporary Entry Permit ("EETEP"), on the basis of his marriage to an Australian citizen. In that application, the applicant made a statutory declaration relating his past criminal conduct in the following terms:
"When I was 18 and 19 years old I was entrapped 2 times by Los Angeles police officers. The first time was involving sells and possession of amphetamines in Los Angeles California. I spent 5 months in jail and was given probation and a suspended sentence. The second time was while I was still only 18 years old and again in Los Angeles. A police officer arrested me for being with a young lady that I had neglected to ask for ID. It was discovered she was a runaway. In both cases I was distraught enough to plea-bargain in court then released with probation. The third time I had just turned 19 years old and my life was a shamble. I got too desperate and committed an attempted robbery which turned into a farce of a crime I was incapable of executing. I served 7 1/2 months in jail and was given 5 years probation which was served concurrent with the first 2 cases. I have not had these problems since probation expiration more than 10 years ago."
On 8 August 1990, the applicant was arrested by officers of the respondent and detained at the Maribyrnong Immigration Detention Centre ("Maribyrnong").
The applicant was apparently detained because of a view adopted by officers of the Department of Immigration, Local Government and Ethnic Affairs ("DILGEA") that the applicant had become an illegal entrant by operation of s.20 of the Migration Act 1958 ("the Act") which provides, in relevant part:
"20.(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
...
(b) when, or before, the person entered Australia, he or she:
...
(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular;
(c) when, or before, a visa was granted or issued in respect of the person, he or she:
...
(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular; or
(d) when the person entered Australia, the person was: ...
(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year; (or)
(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year; ...
(3) A person:
...
(b) to whom subsection (1)...applies; may give to the Secretary a notice in the prescribed form stating that the person is, for reasons specified in the notice, a person to whom the subsection...applies...
(4) Where:
(a) a person has given the Secretary a section 20 notice; and
(b) a visa is granted to the person; the person granting the visa must endorse the visa with a statement that he or she recognises the holder of the visa to be a person to whom subsection 20(1) applies...for the reasons set out in the section 20 notice.
(5) Where:
(a) a person gives the Secretary a section 20 notice; and
(b) an entry permit is granted to the person; the person granting the entry permit shall endorse the entry permit with a statement that he or she recognises the holder of the entry permit to be a person to whom subsection 20(1) or (2), as the case requires, applies for the reasons set out in the section 20 notice.
...
(12) A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular.
(15) In this section:
...
"crime" means an offence punishable:
(a) by death;
(b) by imprisonment for life; or
(c) by imprisonment for a maximum period of at least 6 months;..."
For present purposes, under subs. 14(2) of the Act, persons to whom sub-s. 20(1) applies are deemed, at the time of entry into Australia, to be illegal entrants for so long as they remain in Australia, are not Australian citizens and do not hold a properly endorsed valid entry permit or visa. Under s.59 of the Act, illegal entrants are liable to deportation, by written order of the Minister, once a 28 day period of grace, beginning on the date when the person became an illegal entrant, has expired: see s.13. Illegal entrants can be arrested without warrant and taken into custody in accordance with s.92 of the Act.
Upon detention at Maribyrnong, the applicant completed a notice under s.20(3) of the Act, in which he stated that:
"I neglected to see the importance of listing all the matters pertaining to my past criminal convictions (on the Application to visit Australia form). I wasn't understanding that I was to reveal all of them and thought that the FBI was instrumental to the process of Visa issuance to American citizens."
On 10 August 1990, an officer of the Resident Status Section of DILGEA recommended that the applicant's application for an EETEP be refused. In her minute of that date ("the minute"), the officer, R. Wilmot, stated:
"When Mr Trent applied for his visa to travel to Australia he failed to declare that he had used other names and that he had other criminal convictions other than that which he listed. Furthermore Mr Trent had been convicted of and sentenced to periods totalling more than twelve months. I therefore find that Mr Trent was a person to whom Section 20, subsections 20(1)(c)(ii) and 20(1)(d)(iii), applies in that a visa was granted to him and he made to an officer exercising powers under this Act in respect of the grant of that visa a statement which was false or misleading in a material particular, and because he is a person who has been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year."
Also on 10 August 1990, the applicant was interviewed by another officer of DILGEA. The Report of Interview, which was signed by the applicant as a correct record of the interview, contained, amongst others, the following responses:
"2.3 Have you used any other name/s? If yes: what name/s: BLUNT Terry, WAGONER Harvey Clay when: 8 to 10 years ago
why: when I was buying marijuana in America ...
4.5 Do you have any criminal convictions overseas? Yes all my convictions are already on your file. 4.6 Have you been imprisoned overseas? If yes: Yes I have been remanded into custody several times while waiting for due process of the law. This information is already on file."
On 13 August 1990, a letter on behalf of the Regional Director of DILGEA was sent by facsimile transmission to the applicant at Maribyrnong. The letter, dated 10 August 1990, read, in relevant part:
"The claims you advanced have been carefully considered under the Migration Regulations. It has been decided, however, that your claims do not meet the requirements for the grant of an extended eligibility temporary entry permit. Your application has therefore been refused.
Attached is a resume of the Departmental findings upon which this decision was based. I hope that this helps you understand the reasons for this decision.
As your entry permit was not valid you became an illegal entrant upon arrival in Australia. Because your application for a further entry permit has been refused, your migration status continues to be that of an illegal entrant. Any person who becomes an illegal entrant is given a period of grace in which to leave Australia. The 'period of grace' is 28 days after the person becomes an illegal entrant. If the illegal entrant does not leave Australia by the end of the period of grace he or she could be deported. You became an illegal entrant on 24 December 1989 and the period of grace expired before you applied for this entry permit. You must, therefore, immediately arrange to depart from Australia as you have now become liable to mandatory deportation. Certain categories of decision may be reviewable. If you would like to know whether you have a right of review for the decision conveyed to you in this letter, you should contact the Migration Internal Review Office (MIRO) on 612 3302. A pamphlet is enclosed for your information."
On 30 August 1990, Mr Heath, a Delegate of the respondent issued a deportation order against the applicant on the grounds that:
"Harvey Clay Trent is an illegal entrant by virtue of sub-section 14(2) of the Migration Act 1958 in that he was, at the time of that entry, a person who had been convicted of 2 or more crimes and sentenced to imprisonment, within the meaning of section 20 of the Act, for a period totalling at least one year, and he is not the holder of a properly endorsed valid entry permit of the kind referred to in that sub-section."
An application for an order to review the respondent's decisions to refuse to grant to the applicant an EETEP, to deport the applicant, and to arrest and detain the applicant at Maribyrnong was filed in this Court on 7 September 1990. Also on that date, Keely J ordered by consent that execution of the deportation order be stayed until 14 September 1990.
On 14 September 1990, Jenkinson J ordered a stay of the deportation order until 14 days after delivery by the respondent of reasons for the making of that order, pursuant to s.13 of the AD(JR) Act.
On 20 September 1990, Northrop J ordered that the applicant be released from the respondent's custody until the expiration of 14 days after provision of those reasons.
Also on 20 September 1990, the applicant received from the respondent a statement of reasons, dated 19 September 1990, pursuant to s.13 of the AD(JR) Act for the refusal to grant an EETEP. Those reasons refer to the decision to refuse the EETEP as having been made on 13 August 1990, and include findings, amongst others:
(a) that the applicant failed to disclose that he had used other names
and that he had been convicted of several crimes when applying for a visa to visit Australia and that, accordingly, he had made statements which were false and misleading in a material particular in contravention of s. 20(1)(c)(ii) of the Act;
(b) that the applicant had been convicted of "several crimes for which
he had been sentenced to periods totalling more than twelve months", thus invoking the operation of s.20(1)(d)(iii), and of s.20(1)(d)(ii) in respect of the conviction which attracted a sentence of 365 days;
(c) that by operation of s.14(2) of the Act, the applicant became an
illegal entrant on 24 December 1989, the date on which he entered Australia;
(d) that as an illegal entrant, the applicant failed to satisfy the
criteria for entitlement to an EETEP contained in Reg. 126 of the Migration Regulations ("the Regulations");
(e) that the respondent had no discretion to grant an EETEP to the
applicant because of the operation of Reg. 35AA(c)(i)(A), which provides:
"35AA. (1) The Minister may, in spite of any provision of these Regulations except subregulation (2) and subregulations 42(1A),
(1B) and (1C), grant a temporary entry permit to a person who is an illegal entrant if:
...
(c) in the case of a person who entered Australia on or after 19 December 1989:
(i) the person applies for the entry permit:
(A) where the person became an illegal entrant before 20 January 1990 - not later than 16 February 1990."
The respondent's reasons drew attention to s.34(4) of the Act, which requires the Minister to refuse to grant an entry permit where the applicant fails to satisfy the requirements of the Regulations.
The respondent's statement of reasons for the making of the deportation order were delivered to the applicant on 1 October 1990. Those reasons include the following findings and conclusions:
"A. MY FINDINGS ON MATERIAL QUESTIONS OF FACT
1. The Applicant arrived in Australia on 24 December 1989 as a visitor and was granted a Temporary Entry Permit (TEP) for a stay of six months until 24 June 1990.
2. On entry the applicant was not given an endorsement under Section 20(4) of the Act.
3. A copy of the applicant's visa application form forwarded from Los Angeles on 10 July 1990 showed that the applicant declared that he had been convicted of one criminal offence and that he had no previous or alternative names.
4. A copy of a United States records check forwarded to this office on 28 July 1990 showed that the applicant had a number of criminal charges and was recorded as receiving sentences for three convictions totalling 400 days imprisonment, one of which was for a period of 365 days.
5. In a notice under Section 20 of the Act signed by the applicant and dated 8 August 1990, the applicant states that: . he made a false or misleading statement to an officer granting a visa to him; and
. he had been convicted of a crime and sentenced to death, to imprisonment or (sic) at least one year.
6. On 9 August 1990 the applicant was arrested under Section 92 of the Act.
7. An application for an Extended Eligibility Temporary Entry Permit was refused and a letter dated 10 August 1990 was sent to the applicant advising him of the decision.
8. An application for review of the decision to refuse to grant the applicant an EETEP was considered ineligible and a letter dated 28 August 1990 was sent to the applicant's legal representatives advising them of the outcome.
9. On 28 August 1990 a departmental officer asked the applicant questions in relation to the requirements of Regulation 179. B. REASONS FOR MY DECISION
10. Sub-section 60 of the Act says, "The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act". I therefore considered the prescribed matters, outlined in Regulation 179 which are:
(a) whether the person is an illegal entrant; ...
11. In respect of sub-regulation 179(a) I found that the applicant was an illegal entrant pursuant to Section 14(2) of the Migration Act 1958 because he was a person to whom Section 20(1) applied. I was satisfied that the list of criminal convictions, one of which carried a sentence of 365 days, carried the consequence that the applicant was an illegal entrant upon his entry pursuant to section 20(1)(d) because he did not have a properly endorsed valid entry permit. I also concluded that as the applicant did not declare his aliases on his visa application (such aliases having shown up on his criminal record) and as he had not revealed his full criminal history, that the applicant had made a false and misleading statement in a material particular within the meaning of section 20(1)(c)(ii). As before, the applicant's entry permit was not properly endorsed in this respect.
...
17. After consideration of the prescribed matters I was satisfied that the applicant was an illegal entrant and could not, save for a prescribed change in circumstances, make any further applications for an entry permit or seek review for a decision already made under the Migration Act. The applicant had also been notified of the intention to refer the question of deportation to me. The applicant was therefore liable for deportation. I decided to order his deportation and signed a deportation order. C. MATERIAL ON WHICH THE DECISION WAS BASED
18. In making the above decision I had before me the following material:
(i) Report by L Harrison dated 30 August 1990. The report included the following attachments: . certified copy of the applicant's passport; . the applicant's Notice under Section 20 with a copy of his visa application form and a copy of the U.S. records check; . Direction to Hold in Custody notice dated 9 August 1990;
. departmental letter to the applicant dated 10 August 1990;
. Migration Internal Review Office letter to the applicant's solicitors dated 28 August 1990;
. notice under Regulation 179 and questionnaire dated 28 August 1990.
(ii) the Migration Regulations;
(iii) the Migration Act 1958."
On 15 October 1990, Keely J ordered that the deportation order be stayed until 14 days after the determination of this application and that the applicant not be further arrested or detained by the respondent until that time.
The applicant by his amended application for an order to review seeks to challenge four decisions made by the respondent, on a variety of grounds. Before considering each of the four decisions and the grounds on which each has specifically been challenged, it is convenient to consider one central submission put by the applicant.
Are the decisions vitiated by the decision-maker's references to s.20 of the Act which came into force on 19 December 1989?
24. This central submission on behalf of the applicant has been articulated in the following terms in his amended application:
"8A. As to each of the decisions, the making of each such decision was without jurisdiction, was ultra vires the powers purportedly exercised; involved an error of law; and was not authorised by the Migration Act 1958, as amended and operative as and from 19 December 1989 in pursuance of which each such decision was purportedly made because, by reason of sections 2, 6(1) and 6(4) of the Migration Legislation Amendment Act 1989, the Migration Act 1958 as operative up to 19 December 1989 was the only applicable law pursuant to which each of the said decisions could be made."
It was contended by the applicant that as the date of his initial application for an entry permit was 18 December 1989, the validity of each of the decisions of the respondent challenged in these proceedings must be judged according to the law in force on that date. If this submission be correct, then, so the argument went, each of the decisions challenged is reviewable, as each decision refers to the law in force after 19 December 1989, on which date material amendments to the Act came into force by virtue of the Migration Legislation Amendment Act 1989 ("the amending Act").
Section 16 of the Act before the amendments brought about by Act No 59, of 1989, was, so far as relevant, in these terms:
"(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who -
...
(b) at the time of, or prior to, that person's entry into Australia, the person -
...
(ii) makes or made, or causes or caused to be made, to the Minister or to an officer, in respect of that entry, a statement that is false or misleading in a material particular; or
(ba) at the time of, or prior to, the grant of a visa in respect of the person, the person -
(ii) makes or made, or causes or caused to be made, to the Minister or to an officer, in respect of the grant of that visa, a statement that is false or misleading in a material particular; or
(c) at the time of entry is or was a person of any of the following descriptions, namely:
(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;
(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year; that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section."
Section 6 of the amending Act effected a repeal of Divisions 1 and 1A of Part II of the Act, and substituted extensive new Divisions 1, 1A, 1B and 1C. The counterpart of s.16, as substituted by the amending Act, became s.20 which, again so far as is relevant, has been set out at pp 4-5 of these reasons. Section 6(4) of the amending Act, which deals with transitional arrangements, provides:
"In spite of the repeal effected of subsection (1), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement."
The respondent contends that s.6(4) of the amending Act has a limited purpose, namely to preserve the rights of applicants for visas and entry permits in respect of applications made, but not dealt with by the respondent, before the coming into force of the new provisions. As the applicant had no outstanding applications before the respondent on 19 December 1989, (his 18 December application having been granted on that day), S.6(4), so the argument went, had no application.
In my opinion, the combined operation of ss.14 and 20 of the Act after the amendment effected by the amending Act applies to a person when his or her status arises for consideration after 19 December 1989 irrespective of the fact that the person entered Australia before that date. That is the effect of the introductory words of s.20(1) which is made applicable to "a person, being a non-citizen, who has entered Australia whether before or after the commencement of this section"; (emphasis added). The same words appear in parenthesis in s.14(2) which stipulates:
"(2) Where a person to whom subsection 20(1) or (2) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:
(a) remains in Australia;
(b) is not a citizen; and
(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa."
Thus, it is clear that a person to whom s.20(1) or (2) applies who had entered Australia before 19 December 1989, became on that date, and remains, an illegal entrant as long as he or she satisfies each of the three criteria stated in s.14(2)(a), (b) and (c). I agree with the submission of Mr Tracey of Counsel for the respondent that s.6(4) of the amending Act cannot apply to such a person in the position of the applicant who, on 19 December 1989 had no application pending for a visa or an entry permit.
I turn now to consider separately, and in order, each of the decisions affecting the applicant which has been challenged in his amended application.
The refusal of the applicant's application for an EETEP
32. It was suggested on behalf of the applicant that the decision to refuse him an EETEP was, in fact, made on 10 August 1990, the date typed on the letter which was sent to him by facsimile. On the basis of that suggestion, the Court has been invited to infer that the decision was actually made by the departmental officer, Ms Wilmot, and not by Mr Smits who is identified as the decision-maker in the reasons furnished pursuant to s.13 of the Administrative Decisions (Judicial Review) Act ("the AD(JR) Act"). However, I am satisfied from a perusal of a copy of the relevant departmental minute that the decision on 13 August 1990 was made by Mr Smits who was content to adopt the findings and recommendation set out by Ms Wilmot in a document dated 10 August 1990. I also infer, if it be necessary, that Ms Wilmot prepared, in anticipation of Mr Smits' decision, a letter notifying Mr Trent of the refusal of his application for an EETEP. That letter was mistakenly dated 10 August but was not sent to Mr Trent until 13 August 1990, after Mr Smits had made his decision.Several criticisms have been made of findings recorded in the reasons given by Mr Smits for his decision. It has been suggested, first, that he failed to take into account what was disclosed by Mr Trent when he was interviewed by a departmental officer on 10 August 1990. As well, it has been argued that the decision-maker misdirected himself in considering whether Mr Trent had made a statement which was false or misleading in a material particular when he completed, in applying for a visa to enter Australia, those parts of the form which enquired after previous or assumed names and prior convictions. Mr Keon-Cohen of Counsel for the applicant contended, moreover, that the decision-maker failed to take into account the partially amplified disclosure of his prior convictions which Mr Trent made in his application of 27 June 1990 for an EETEP.
Some of those criticisms have considerable force. However, it is clear, on examining as a whole the reasons for his decision which Mr Smits furnished under s.13 of the AD(JR) Act, that it essentially proceeds from the premise that Mr Trent was a person to whom s.20(1) of the Act applied at the commencement of s.14 to a conclusion that he was an illegal entrant and thereby ineligible for the grant of an EETEP. If that premise is unassailable in point of fact, and, if, on the proper construction of the Act, the conclusion which Mr Smits reached necessarily follows from that premise, any possible errors of fact or law made by Mr Smits in his consideration of peripheral matters cannot avail the applicant.
Section 20(1) of the Act applies to, amongst others, a person who, at the time of entry into Australia, had been convicted of a crime and sentenced to imprisonment for a period of at least one year. By s.20(15) "crime" is defined to mean "an offence punishable:
(a) by death;
(b) by imprisonment for life; or
(c) by imprisonment for a maximum period of at least 6 months;".
The evidence before the Court establishes that Mr Trent had been convicted in California on 14 May 1976 of robbery of a business and sentenced to 365 days imprisonment; i.e. a period of exactly one year as the sentence, apparently, was not imposed before February 29 in a leap year. The inference which I draw, akin to that inherent in the presumption of regularity, is that it was within the power of sentencing authority to impose a sentence of at least that length for "robbery of a business" which is therefore a "crime" as defined in s.20(15). No evidence of Californian criminal law has been adduced either to the Department or before this Court to negative that inference. On the evidence available to the decision-maker, therefore, Mr Trent was, when he entered Australia, a person to whom s.20(1) of the Act applied by virtue of par.(d)(ii) thereof, although the process of reasoning just outlined would not support the conclusion that he had been convicted of two or more "crimes" so as to come within par.(d)(iii).
Because, as I have found, Mr Trent was a person to whom s.20(1) of the Act applied, he could only have obtained a properly endorsed valid entry permit (as defined in s.4 of the Act) so as to take him outside the category of illegal entrant described in s.14(2), by giving to the Secretary of the Department a s.20 notice and obtaining an entry permit endorsed with a statement by the person granting the permit that he or she recognized Mr Trent to be a person to whom s.20(1) applied for the reasons set out in his s.20 notice: see sub-ss.20(3) and (5). Indeed, Mr Trent impliedly acknowedledged the need for him to follow that procedure when, on 8 August 1990, he completed and lodged a form of s.20 notice.
However, Mr Smits took the view that by 8 August 1990 it was no longer open to Mr Trent to be granted a properly endorsed valid entry permit. He reached that conclusion by referring first to s.34(4) of the Act which provides:
"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."
That statutory injunction led, in turn, to a consideration of Reg. 35AA which, as in force on 13 August 1990, was in these terms:
"35AA (1) The Minister may, in spite of any other provision of these Regulations, except subregulation (2) and subregulations 42(1A), (1B) and (1C) grant a temporary entry permit to a person who is an illegal entrant if:
(a) in the case of a person to whom paragraph 42(1C)(a) (b) (ba) and (c) applies:
(i) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and
(ii) the Minister is satisfied that the person:
(A) has not departed from Australia since that entry; and
(B) has developed close personal ties with Australia; or
(b) in the case of a person who entered Australia before 19 December 1989, not being a person referred to in paragraph
(a):
(i) the person applies for the entry permit not later than 31 October 1990; and
(ii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and
(iii) the Minister is satisfied that there are compelling reasons for granting the entry permit; or
(c) in the case of a person who entered Australia on or after 19 December 1989:
(i) the person applies for the entry permit:
(A) where the person became an illegal entrant before 20 January 1990 - not later than 16 February 1990; or
(B) where the person became an illegal entrant on or after 20 January 1990 - not later than 28 days after becoming an illegal entrant; and
(ii) any entry visa or entry permit that expired was not granted subject to the condition that the holder would not be entitled to be granted an entry permit, or a further entry permit, as the case requires, while the holder remained in Australia; and
(iii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and
(iv) the Minister is satisfied:
(A) that the person became an illegal entrant because of factors beyond his or her control; and
(B) that there are compelling reasons for granting the entry permit; and
(C) that the person complied substantially with any conditions subject to which any such entry visa or entry permit was granted (other than a condition of which the person was in breach solely because of the expiry of any entry visa or entry permit); and
(D) that the person would have been entitled to be granted an entry permit of the class applied for if he or she had applied for such an entry permit immediately before becoming an illegal entrant; and
(E) that the person intends to comply with any conditions subject to which the entry permit is granted; or
(d) the person:
(i) was notified on or after 21 November 1989 that he or she was entitled, under the provisions of the Migration Regulations relating to second applications as in force before 19 December 1989, to make an application for an entry permit; and
(ii) had not lodged the application before 19 December 1989; and
(iii) applies for an entry permit not later than 30 September 1990.
(2) The Minister is not to grant an entry permit to a person under subregulation (1) on more than 1 occasion."
Sub-paragraphs 42(1C) (a), (b) (ba) and (c) of the Regulations as in force on 13 August 1990 were in these terms:
"(1C) For the purposes of subregulation (1A), an applicant is a prescribed applicant:
(a) if the applicant entered Australia before 1 January 1975; or
(b) if the applicant entered Australia before 19 December 1989 when he or she was engaged to be married to an Australian citizen or an Australian permanent resident and subsequently married that citizen or resident; or
(ba) if the applicant:
(i) entered Australia on or after 19 December 1989 as the holder of a prospective marriage entry visa operating as an entry permit or of a prospective marriage entry permit; and
(ii) married the person stated by the applicant in the application for that visa or the visa on the basis of which the prospective marriage entry permit was granted to be the person whom he or she proposed to marry; and
(iii) becomes an illegal entrant; or
(c) if the applicant:
(i) entered Australia when he or she was:
(A) the holder of a conditional resident return visa granted before 19 December 1989; or
(B) the holder of a return visa, Class A, B, C, D or E, granted before 10 December 1990 in circumstances declared by subregulation (1E) to be special circumstances; or
(C) the holder of a return visa, Class F; and
(ii) was an Australian permanent resident at any time within 5 years before being granted that visa; and
(iii) has not departed from Australia since that entry; and
(iv) has developed close personal ties with Australia; or"
It has not been suggested that Mr Trent was a person to whom any part of sub-paragraphs 42(1C) (a) (b) (ba) or (c) applied. Accordingly, he was on 13 August 1990 a person to whom Reg. 35AA(1)(C)(i)(B) applied in that he had entered Australia after 19 December 1989 and became an illegal entrant immediately upon his arrival on 24 December 1989. The discretion conferred on the Minister would therefore have been exercisable in respect of Mr Trent only if he had made application for a temporary entry permit not later than 16 February 1990. The specific grant of power exercisable in those limited circumstances negatives the existence of a more general power to grant temporary entry permits to persons in Mr Trent's situation; see e.g. R v Wallis ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 where Dixon J (as he then was) speaking of s.38 of the Conciliation and Arbitration Act said, at 550:
"But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s.38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed in qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co. (Burslem), Ltd v Ward (1868) LR 3 Ex 172, at p 177, Willes J refers to "the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined."
The restrictions imposed by the provisions to which I have referred were apparently recognized by the framers of the Regulations and relaxed by the insertion by SR 60 of 1991 in Reg. 35AA of a new sub-reg. (1A) in these terms:
"(1A) Despite any other provision in these Regulations, except subregulation (2), the Minister may grant an entry permit to a person who:
(a) is an illegal entrant by reason only of the operation of subsection 14(2) of the Act; and
(b) satisfies the prescribed criteria in relation to that kind of entry permit (other than, if applicable, the prescribed criterion that the person be the holder of a valid entry permit and the criteria prescribed by subregulation 42(1A)); if the person applies for the entry permit before being served, or before the expiry of 7 working days after the day on which he or she is served, with a notice by the Minister to the effect that the person is an illegal entrant."
However, sub-reg 35AA(1A) did not come into effect until 15 April 1991 and whether the decision to refuse to grant Mr Trent an EETEP involved an error of law has to be determined as at 13 August 1990 when the decision was made. For the reasons given above, no other decision was open to the decision-maker.
Counsel for the applicant pressed an alternative attack on this first decision by invoking the doctrine of estoppel. The application of that doctrine was said to arise from the conduct of the immigration officer at Los Angeles who issued Mr Trent with a visa on 18 December 1989 despite the indication on his application form that he had been convicted of "12 years ago possession of amphetamines USA LA." That indication, so it was submitted, should have put the officer on enquiry as to whether Mr Trent came within what was then s.16(1)(c) of the Act. Had appropriate enquiries been made, the argument proceeded, the need for Mr Trent on arrival in Australia to give a s.20 notice would have been revealed, and he would have been afforded an opportunity to apply for a properly endorsed valid entry permit on or before 6 February 1990 which, as I have found, was the last day on which such an application could have had any prospect of success.
In support of this alternative argument, Counsel for the applicant referred to Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681. There Lee J found, on the facts of the case, that the issue of an entry permit without an endorsement under s.16(1), amounted to a holding out by the respondent that the applicant had considered her disclosure and had determined that the provisions of s.16(1) did not apply. The way in which such a finding was available to ground an estoppel was indicated by his Honour, at 703, in these terms:
"Although it was not argued before me, I would observe that in a case such as this it may have been possible for the applicant to contend that the respondent was estopped from relying on the deeming provisions of s.16(1) when the respondent, through his officers, had issued an entry permit without endorsement, the Department possessing full knowledge of the circumstances which the respondent now contends required an endorsement to be applied to the entry permit pursuant to s.16(1). If estoppel were to be raised, of course, it would be necessary for it to be shown that the applicant had suffered some detriment by acting on the representation."
Whether or not one shares the reservations about the width of that passage which were voiced by Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 214, it is clear that it has no application to the present case because it is impossible to contend that, on 18 December 1989, the Department possessed "full knowledge of the circumstances" which it now contends required Mr Trent, on or after 24 December 1989, to give a s.20 notice. The only knowledge which the officer issuing the visa can be said to have possessed is that Mr Trent had been convicted in about 1977 of possession of amphetamines. There was nothing in Mr Trent's response to the question which elicited that answer to suggest that he had been sentenced to imprisonment for at least one year for that offence, let alone any other offence. Accordingly, the doctrine of estoppel, if available at all in this context, cannot be relied on by Mr Trent in the circumstances of the issue of his visa.
For these reasons the attack on this first decision fails.
The decision that the applicant be deported.
47. Although the power conferred on the Minister by s.60 to order the deportation of an illegal entrant is discretionary, the matters which may be taken into account in the exercise of that discretion are severely circumscribed. Section 60 provides:
"(1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.
(2) In spite of any other provision of this Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended."
The prescribed matters are to be found in Reg. 179 which is in these terms:
"For the purposes of subsection 60(1) and 82(1) of the Act respectively, the following matters are prescribed to be considered by the Minister in relation to a person referred to in whichever of those subsections is applicable:
(a) whether the person is an illegal entrant;
(b) whether the person has been given in accordance with these Regulations a notice of the intention to refer to the Minister the question of the exercise of the power:
(i) to order the deportation of the person; or
(ii) to require the person to leave Australia; as the case requires;
(c) whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum;
(d) whether the person:
(i) is an applicant for an entry permit; or
(ii) has applied to a review authority following a decision by the Minister refusing to grant an entry permit;
(e) whether the person is subject to a court order that is in force affecting the Minister's exercise of the relevant power referred to in paragraph (b);
(f) whether 2 working days have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires, or if the person applied to the Minister under subparagraph 42(1A) (a) (iv), 7 working days have elapsed after the day on which he or she was so arrested."
It follows from the conclusion which I have reached in respect of the refusal of the EETEP, that the Delegate of the Minister who ordered that Mr Trent be deported, correctly found that he was an illegal entrant, because, by reason of the conviction on which he was sentenced to 365 days imprisonment, he was a person to whom s.20(1)(d) of the Act applied. That correct finding is not vitiated by the fact that the decision-maker adverted to other facts, as constituting an alternative basis on which he identified Mr Trent as an illegal entrant, which other facts were arguably not established on the evidence before him.
Nor is the decision to issue the deportation order vitiated by the recital in the body of that order that Mr Trent was, at the time of his entry into Australia, an illegal entrant by virtue of the fact that he was "a person who had been convicted of 2 or more crimes and sentenced to imprisonment ... for a period totalling at least one year." Even assuming that the evidence available to Mr Heath did not support that finding, there was incontrovertible evidence, including Mr Trent's own admission, of facts which otherwise made the applicant an illegal entrant.
It was not suggested that Mr Heath had not correctly considered the matters specified in paragraphs (b), (c), (e) and (f) of Reg. 179. Nor can it be said that there was any error in the decision-maker's consideration of a pending application for an entry permit or to a review authority which is required by Reg. 179(d). Had Mr Trent's application for an entry permit been wrongly refused, that vice would have affected Mr Heath's consideration of the matter prescribed in that sub-regulation. However, for the reasons already given in respect of the refusal of the EETEP, that decision was, on 30 August 1990, immune from successful attack.
Mr Keon-Cohen for the applicant urged that, even if should reach the conclusion, which I have, that no other decision was open to the Delegate who ordered Mr Trent's deportation, I should set aside that decision because of the decision-maker's presumptively erroneous reflections about matters not essential to the identification of Mr Trent as an illegal entrant. That course, it was submitted, would give the applicant the advantage of having the discretion exercised again against the background of whatever changes in law or policy might have been made in the meantime. I reject that invitation. In my view, it would be an improper exercise of the discretion conferred by s.16 of the AD(JR) Act as elaborated by a Full Court of this Court in Lamb v Moss (1983) 49 ALR 533 at 550, to make an order quashing or setting aside a decision because of some finding of fact not open on the evidence or misstatement of law, if, on the established facts and the correct application of the relevant law, that decision were the only one open to the decision-maker. That is not to say that the Minister may not, of his own motion, reconsider the subject decision in the light of changed facts or circumstances.
For all of these reasons, I decline to quash or set aside the decision of 30 August 1990 that Mr Trent be deported.
Decision pursuant to s.92 of the Act to detain the applicant in custody
54. The applicant's case for review of this decision depends on his establishing the ground argued in respect of the refusal of the EETEP, that he was not, on and after 24 December 1989, an illegal entrant by virtue of the combined operation of ss.14(2) and 20(1)(d) of the Act. Since he has failed in his attack on that first decision, the application for review of the third decision must also be rejected. In any event, by the time when the substantive application was heard the applicant's complaints about the third decision had become academic because of the order of Keely J on 15 October 1990 that the applicant be released from custody until the expiration of 14 days from the determination of the application for an order to review or further order.Decision pursuant to s.93 of the Act to further detain the applicant in custody and not to release him
55. This decision was predicated on the making of the deportation order pursuant to the second decision discussed above which, in turn, depended on the correctness of the respondent's identification of the applicant as an illegal entrant. That identification was central to the making of the first decision. Since the applicant has failed in his attack on each of the first and second decisions, it follows that the application for review of the fourth decision must likewise be refused.
CONCLUSION
56. In the result, for the reasons outlined above, the application is refused with costs.
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