Rodwell v Minister for Immigration, Local Government and Ethnic Affairs

Re: VERDON DENNIS RODWELL
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G210 of 1992
FED No. 468
Migration
(1992) 28 ALD 195 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Migration - application for entry permit made prior to 19 December 1989 - notification of refusal sent by post to last address notified to department - returned unclaimed - notification later served on applicant personally - application for reconsideration by Immigration Review Panel - whether application for reconsideration made within time limited by regulations.

Migration - application for extended eligibility (family) entry permit - previous application for entry permit made before 1989 amendments to Migration Act - previous application refused - effect of 1989 amendments - whether second application a further application - whether it was necessary to show a prescribed change in circumstances.

Migration Act 1958, s. 6, s. 6A (prior to 19.12.89), s. 37

Migration Legislation Amendment Act 1989, s. 6

Migration Regulations, Regs. 35, 40, 173, 173A

HEARING

MELBOURNE

#DATE 1:7:1992

Counsel for the applicant: Mr T. Hurley

Solicitors for the applicant: Macpherson and Kelley

Counsel for the respondent: Mr K. Bell

Solicitor for the respondent: Australian Government Solicitor

JUDGE1

The application

By application filed 19 June 1992 the applicant seeks the review of 5 decisions and/or occasions of conduct by the respondent in relation to the applicant's efforts to remain in Australia legally.

In interlocutory proceedings heard on 23 June 1992 the applicant sought orders, pending trial of the application, to restrain the respondent from executing an order for the applicant's deportation made on 13 February 1992 and for the release of the applicant from custody.
Argument was advanced in respect of only 2 of the decisions referred to in the application. It was said that in each case there is a serious question to be tried and that the balance of convenience falls heavily in favour of granting the interlocutory relief sought.
2. Facts
The following statement of facts is based upon the affidavit evidence of the parties, as to which there is no dispute.
The applicant, an Indian citizen born on 6 July 1962, entered Australia on 16 July 1989 and was granted a 6 month temporary entry permit. On 3 September 1989 he married an Australian citizen and on 22 September 1989 applied for resident status pursuant to the provisions of what was then section 6A(1) of the Migration Act 1958 (the Act) on the ground that he was the holder of a temporary entry permit and was the spouse of an Australian citizen. In the application he gave his residential address and his address for mail as 9 Thredbo Court, Dandenong. The application contains statutory declarations supporting the application made on 8 September 1989 by Glenice Gail Galway (the applicant's wife), Faye Barbara Moldrich (his sister) and Joseph Charles Ranleigh Moldrich (his brother-in-law).
The applicant and his wife were each interviewed by an officer of the Department of Immigration, Local Government and Ethnic Affairs (the department) on 12 December 1989. In the course of her interview, the applicant's wife said that she and the applicant were not living as husband and wife and on the same day, using the name Glenice Gail Burke (apparently the surname Burke was that of her former husband) she made a written statement that she had never lived with the applicant in a husband and wife relationship and that she withdrew her support for the application for resident status.
By letter dated 2 January 1990 (whilst still the holder of a temporary entry permit) the applicant advised the department that his marriage had broken down and requested that his application for resident status be considered on compassionate and humanitarian grounds due to the then serious state of health of his mother. Section 6A(1)(e) of the Act as it applied at the date of the original application provided for the granting of an entry permit to the holder of a temporary entry permit when there were strong compassionate or humanitarian grounds for the grant of same. The letter of 2 January 1990 gave the applicant's address as 3/3 Peace Court Doveton.
The applicant's temporary entry permit expired on 18 January 1990 before any decision had been given on his application and since 19 January 1990 he has been an illegal entrant.
The applicant's sister Faye Barbara Moldrich contacted the department by telephone on 9 February 1990 and advised that the applicant was not her natural brother, but rather the child of her mother's sister and had been informally adopted into the family. She also said that she was no longer supporting the application. Subsequently, written memoranda, both dated 19 March 1990, were received by the department from Mrs Moldrich and Thelma Kathleen Rodwell (the applicant's putative mother) advising that they "cannot, and do not wish to support" the application. Mrs Thelma Rodwell died on 23 March 1990.
On 7 May 1990 a telephone message was received by the department advising a change of address for the applicant to 24 Janine Road, Springvale South. There is no record of who this message was received from. However, on or about 14 May 1990 a typed but unsigned letter, purporting to have been written by one Angela Wills of 24 Janine Road, Springvale South, was sent to the department. The letter makes a number of allegations against the applicant, none of which is presently relevant. However the letter does indicate that the applicant had then recently been residing at 24 Janine Road but, by inference, was no longer there.
By letter dated 22 May 1990, posted on 23 May 1990, and addressed to 24 Janine Road, Springvale South the applicant was requested to attend the department for an interview on 8 June 1990 but on 29 May 1990 it was returned unopened with the notation "Please return to sender no longer at this address".
Ultimately, the applicant's application was refused and a letter dated 27 June 1990 was written to him advising him to that effect. This letter was posted to the applicant on 29 June 1990 addressed to 24 Janine Road, Springvale South and was subsequently returned endorsed with a notation in the same terms as the previous letter.
On 2 December 1991 notice of intention to refer to the Minister the question of the exercise of the power to order the deportation of the applicant was forwarded to the applicant by post. Two copies of the notice were sent, one to 3/49 Balcombe Road, Mentone and one to 24 Janine Road, Springvale South. There is no evidence to indicate where the Mentone address had come from nor is there any evidence as to whether either notice was returned unclaimed.
An order for the deportation of the applicant was made pursuant to section 60 of the Act on 13 February 1992.
The applicant contacted the department by telephone on 2 April 1992 and on the same day attended at the department's office in Melbourne where he was served with the deportation order and arrested pursuant to section 93 of the Act. He was taken into custody where he still remains. At the time he was served with the deportation order he was also handed a copy of the department's letter of 27 June 1990.
On 6 April 1992 the applicant applied for an extension of time within which to apply for an entry permit. On 13 April 1992, 2 applications were made, namely an application for an Extended Eligibility (Family) Temporary Entry Permit in the category of "remaining relative" and an application for reconsideration by the Immigration Review Panel of the decision made on 27 June 1990. The latter application was refused on the ground that in accordance with regulation 173A it should have been made before 31 August 1990. This decision was communicated to the applicant on 15 April 1992. On 11 June 1992 the application for an Extended Eligibility (Family) Temporary Entry Permit was also refused on the ground that there had been no "prescribed change" in the applicant's circumstances.
The application in these proceedings was filed on 19 June 1992.
2. The decision to reject application for review by the Immigration Review Panel.
The decision which the applicant sought to have reviewed was the decision made on 27 June 1990 to refuse his application made on 22 September 1989 pursuant to section 6A(1) of the Act as it was prior to 19 December 1989. There is no question that the application was an application for an entry permit under the law as it then stood, notwithstanding that the form on which it was made carried the heading "Application for grant of resident status in Australia".
The relevant portions of regulation 173A provide:

173A. (1) Where a person whose application under the provisions of the Act as in force before 19 December 1989 for the grant of a visa or entry permit has been refused after 18 September 1989:

(a) did not lodge under regulation 29B, 29BA, 29BB or 29BC of the Migration Regulations as in force before 19 December 1989 a second application for the visa or entry permit; and

(b) is not entitled to apply under the provisions of the Migration (Review) Regulations for review of the decision;

the person may make one application to the Minister, in a form approved by the Minister, to reconsider the decision.

...

(4) An application under subregulation (1) to reconsider a decision to refuse to grant a visa or entry permit must be lodged:

(a) if the applicant is physically present in Australia when the decision is made:

(i) before the expiration of 28 days after the applicant was notified of the decision in accordance with these Regulations; or

(ii) on or before 31 August 1990; whichever is the later; or

(b) if the applicant is not so present:

(i) before the expiration of 70 days after the applicant was notified of the decision in accordance with these Regulations; or

(ii) on or before 31 August 1990; whichever is the later.

It is common cause that the applicant is a person to whom subregulation 173A(1) applies and that the question of the proper timing of his application for the reconsideration of the decision is governed by subregulation 173A(4)(a). As the application was not made on or before 31 August 1990, the sole issue is whether the application for reconsideration was lodged:

before the expiration of 28 days after the applicant was notified of the decision in accordance with (the) Regulations.

The applicant did not physically receive the letter of 27 June 1990 notifying him of the decision to reject his application until 2 April 1992. If that date is to be taken as the date he was notified of the decision then clearly his application for reconsideration was made within 28 days of notification. It will be noted however, that paragraph 173A(4)(a)(i) does not speak simply of the notification of the decision but rather of the notification of the decision in accordance with the regulations. It is necessary therefore to refer to the relevant regulations, namely regulations 35 and 173(1) and (2), which are as follows:

35. (1) Where the Minister refuses to grant a visa or an entry permit, or determines that a visa or an entry permit ceases to be in force because the holder has failed to comply with a terminating condition subject to which the visa or entry permit was granted, the Minister must give the applicant written notice of that decision:

(a) by posting the notice to the latest address for service provided by the applicant in relation to the application; or

(b) by posting the notice to the residential address provided by the applicant in the application; or

(c) by giving the notice to the applicant personally or to a person duly authorised to receive documents on behalf of the applicant; or

(d) by leaving the notice at the last known place of residence of the applicant with a person apparently an occupant of that place and apparently not less than 16 years of age.

(2) Where notice of decision is served on the applicant under subregulation (1), service is to be taken to be effected as if the notice was a document to which subregulation 173(1) or (2) applies.

(3) Subregulation (1) does not apply where the applicant is refused a visa or an entry permit on arrival in Australia and before entry to Australia.

173. (1) Subject to this regulation, a document served on a person is to be taken to be received by the person on the day on which the document:

(a) is given to, or left with, the person; or

(b) is given to, or left with, another person authorised by the first-mentioned person to receive documents of that kind on his or her behalf; or

(c) where these Regulations provide for such service - is left at the place of business or residence of the person to be served with another person apparently an occupant of that place and apparently not less than 16 years of age.

(2) Subject to subregulation 4, if a document is served on a person in accordance with this Division by post, service is to be taken to be effected:

(a) if the service is within Australia - on the expiry of 5 working days after the day of posting; or

(b) if the service is outside Australia - on the expiry of 21 days after the day of posting. ...

The combined effect of the foregoing regulations is that if the address to which the notice was posted (24 Janine Road, Springvale South) was the latest address for service provided by the applicant in relation to the application (reg. 35(1)(a)) or the residential address provided by the applicant in the application (reg. 35(1)(b)), then service of the decision is taken to have been effected on the expiration of 5 working days after the date of posting (29 June 1990).
The residential address provided by the applicant in the application was 9 Thredbo Court, Dandenong, and accordingly the respondent cannot rely upon regulation 35(1)(b) to prove service. Whether the respondent could technically have resorted to posting the notice to this address and so achieved effective service is a question which I do not have to decide, but it is a question the resolution of which may have some bearing upon the proper construction of the regulation.
The question does arise however as to whether 24 Janine Road, Springvale South was the "latest address for service provided by the applicant in relation to the application".
When the applicant wrote to the department on 2 January 1990 he gave his address as 3/3 Peace Court, Doveton. He did not expressly say that this was now his address for service but to suggest other than that he intended that future correspondence should be addressed to him at that address would be quite unsustainable. Subsequently, on 7 May 1990 the department was notified by telephone that the applicant had changed his address to 24 Janine Road, Springvale South. There is no evidence as to who notified the department but subsequent correspondence apparently from Ms Angela Wills suggests that the applicant had in fact resided at 24 Janine Road from mid-February 1990 until a short time before 14 May 1990. In these circumstances it was reasonable for the department to infer that 24 Janine Road, Springvale South had become the applicant's address for service provided by the applicant in relation to the application. No further contact was made with the department either by or on behalf of the applicant until 2 April 1992.
There can be no doubt that regulation 35 has the purpose of ensuring that a decision to refuse an entry permit (and other matters) is notified to the unsuccessful applicant. The words used are quite strong, - "the Minister must give the applicant written notice of that decision". But having said that the regulation provides 4 alternative methods for giving notice without providing any criteria or other guidance as to which alternative is to be adopted in any given set of circumstances. Paragraph (b) provides something of a problem in that it would appear that service by posting to the address provided in the application would be good service even in circumstances where the respondent has been notified that the applicant is at some other address or a different address for service has been notified. In the absence of any internal indication as to how the choice is to be made it would seem that the regulation has to be given effect to in accordance with its terms. It may be that the only gloss that can be implied is that the choice should be made in good faith, but in this case the facts do not support any suggestion other than that the method of service was appropriate even though it was known at the time that it was likely that the notice would not reach the applicant.
There are strong policy reasons for applying a strict construction to regulations of this type. The department is at an extreme disadvantage in dealing with large numbers of applicants upon whose good faith it must rely to keep its records of their whereabouts current. There is of course, in many cases, a great incentive for an illegal entrant to refrain from being completely frank with the department, given the enormous difficulty associated with locating those who simply merge into the general community. Although there may be occasions when strict reliance upon the regulations could be regarded as harsh, the policy of the regulations is clear enough. They have been drafted to meet a particular purpose and must be given effect to in accordance with their terms.
In my opinion, on a proper construction of the regulations, the applicant must be taken to have been notified of the decision to refuse the application for entry permit made on 22 September 1989 on the expiry of 5 working days after 29 June 1990. Obviously, the effective date was prior to 31 August 1990 and accordingly, the last date upon which the application for reconsideration could be made was 31 August 1990.
3. The decision to refuse the application for Extended Eligibility (Family) Entry Permit.
The application for Extended Eligibility (Family) Entry Permit made on 13 April 1992 was based upon a claim that the applicant fell into the category of a "remaining relative", and was rejected on the ground that there had been no prescribed change in his circumstances since he last applied for an entry permit.

The relevant statutory and regulatory provisions are as follows:

Section

37 (1) This section applies to an illegal entrant who:

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

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

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

(2) Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:

(a) there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and

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

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

...

(d) the person has become: ...

(iii) a remaining relative; ...

It is common cause that the applicant is an illegal entrant who has entered and remained in Australia, that while in Australia he has been refused an entry permit, that he is not a person to whom section 36 applies because of section 121, and that no deportation has been made in respect of him under section 59. That being the case, he is not entitled to make a further application for an entry permit whilst he remains in Australia unless there has been a prescribed change in his circumstances since he last applied for an entry permit. The prescribed change which he claims is that he has become a remaining relative.
The relevant prior date at which to consider the applicant's circumstances for the purpose of assessing whether there has been a prescribed change in his circumstances is the date of his last application, which was 22 September 1989. It is unnecessary to here examine the criteria for establishing whether or not the applicant is a remaining relative within the meaning of the regulations. Indeed, for present purposes it can be assumed that he is, although such an assumption ought not to be regarded as a finding to that effect. A literal construction of section 37(2) which speaks of a prescribed change and regulation 40(1)(d) which speaks of a person having become a remaining relative, can only lead to the conclusion that if the applicant's circumstances are relevantly the same now as they were when he made his original application in September 1989, there can have been no prescribed change and thus he would have no entitlement to make a second application whilst he remains in Australia.
Nothing in his application for Extended Eligibility (Family) Entry Permit nor anything said in support of the application in this Court suggests that there has been any relevant change in the applicant's circumstances since 22 September 1989. Indeed, counsel for the applicant concedes that there has been no change, but argues that by reason of the extensive amendments made to the Act which took effect from 19 December 1989 the original application ought not to be regarded as an application for an entry permit for the purposes of section 37, and accordingly, it is said that the application for entry permit made on 13 April 1992 should be treated as if it were a first application.
With respect, I reject the case put on the applicant's behalf.
Section 6(1) of the Migration Legislation Amendment Act 1989 (No. 59 of 1989) (the amending Act) repealed the whole of Divisions 1 and 1A of Part II of the principal Act, and substituted new Divisions 1, 1A, 1B and 1C. Both before and after 19 December 1989 Part II of the Act has been entitled "Entry, Presence and Deportation of Non-Citizens". The repealed Division 1, which was entitled "Entry Permits", included 6A(1) pursuant to which the original application was made and considered. At that time, section 6A(1) provided:

6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.

Prior to 19 December 1989 the term "entry permit" was defined to mean a permit issued under section 6. The latter section provided in part:

6. (1) A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.

(2) An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.

(4) For the purposes of sub-section (3), where a notation in a form approved by the Minister as a form of entry permit is made by an officer in a passport or other document of identity held by a person and the notation does not specify the name of any person as the person to whom it relates, the notation has effect as if it were expressed to relate to the person holding the passport or other document.

(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).

(6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.

...

The changes effected by the amending Act repealed all reference to the term "prohibited non-citizen" and introduced the term "illegal entry". The definition of "entry permit" was changed to mean:

permission to enter or remain in Australia.

There can be no question that the applicant's application of 22 September 1989 was an application for permission to remain in Australia, thus an application for an entry permit.
Subsections 6(1) of the amending Act effected substantial changes to the law relating to the entry, presence and deportation of non-citizens, but the changes so made are not so incompatible with the previous law as to support the submission that a pre-19 December 1989 application for entry permit is not to be treated as an application for an entry permit for the purpose of section 37. Indeed, the general tenor of the provisions of subsection 6(2) to (5) (inclusive) of the amending Act (which are in the nature of transitional provisions) strongly supports the conclusion that the changes were of the nature of amendments to an existing law rather than a completely new regime which was to apply as if the previous law had not existed.
In dealing with the application for entry permit made on 13 April 1992, the respondent's delegate did not consider the merits of the claim that the applicant made. The application was rejected on the ground that the applicant had no entitlement to make such an application whilst he remained in Australia. In reaching this conclusion the delegate applied the terms of section 37 and regulation 40 literally to the admitted facts of the case. In my opinion he correctly construed the section and regulation.
4. Conclusion
In my opinion the applicant has failed to demonstrate that there is a serious question to be tried in respect of either of the grounds argued.
The application for interlocutory relief will be dismissed.

[1992] FCA 468

01 JULY 1992