Simonsz, L. v The Minister for Immigration & Ethnic Affairs

[1995] FCA 95

CATCHWORDS

IMMIGRATION - application for review - application for entry permit refused - decision to detain illegal entrant in custody - material against which reasonableness of decision is to be assessed - whether period of grace expired - adequacy of notification of refusal - whether a permissible application before the department.

Migration Act 1958 ss 6A, 13, 34, 37, 92
Acts Interpretation Act 1901 s 29
Migration Regulations regs 35, 42, 140, 173

Associated Provincial Picture Houses Ltd v Wednesbury     Corporation [1948] 1 KB 223

Attorney General (NSW) v Quin (1990) 170 CLR 1

Prasad v Minister for Immigration and Ethnic Affairs (1985)   6 FLR 155

Parramatta City Council v Pestell (1972) 128 CLR 305

Australian Broadcasting Tribunal (1990) 170 CLR 321

No. VG 35 of 1993
LEONIE SIMONSZ v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Branson J.
Melbourne
7 March 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )    No. VG 35 of 1993
  )
GENERAL DIVISION                 )

BETWEEN:

LEONIE SIMONSZ

Applicant

- and -

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

REASONS FOR JUDGMENT

CORAM:    Branson J.
PLACE:    Melbourne

DATE:     7 March 1995

Introduction

The applicant, a citizen of the Democratic Socialist Republic of Sri Lanka, arrived in Australia on 27 March 1988 on a visitors visa and was granted a Temporary Entry Permit ("TEP") valid for six months.  Subsequently the TEP was extended until 20 December 1988.  No further extension of the TEP was granted.  Thereafter the applicant was, in the current terminology, an illegal entrant.

On 6 December 1988 the applicant made an application on compassionate grounds under s.6A(1)(e) of the Migration Act 1958 for resident status ("the first application"). The Migration Act 1958 as relevantly in force from time to time

will hereafter be referred to as "the Act".  The first application was refused on 22 March 1990.  The applicant sought judicial review of the decision to refuse the first application, but subsequently settled the proceedings after learning that amendments to the Migration Regulations allowed reconsideration by the Immigration Review Panel of the refusal.  An application for reconsideration by the Immigration Review Panel was submitted on 29 August 1990.
On 24 April 1990 the applicant submitted a further application for permanent residence ("the second application").  The respondent does not accept the validity of the second application.  The second application was purportedly made pursuant to regulations 42 and 140 of Migration Regulations, as then relevantly in force ("the Regulations").

The applicant's mother, and other members of her family, had migrated to Australia in 1972.  When the applicant arrived in Australia in 1988 her mother was elderly and her health was declining.  The applicant took over the care of her mother with whom she was living.  Her applications for permanent residence in Australia are principally based upon the need of her mother for her ongoing care and emotional support.

On 24 August 1992 the applicant's mother died.  At this time the applicant was still awaiting advice as to the result of first, her application for reconsideration by the Immigration Review Panel of the refusal of the first application, and
secondly, the second application.  She did not advise the respondent of the death of her mother.

At about 7.30 a.m. on the morning of 8 February, 1993 a Mr Dominic Yau and other officers of the Department of Immigration and Ethnic Affairs ("the Department") went to the address at which the applicant was living.  The following is an extract of an affidavit of Mr Yau.  The applicant does not challenge its accuracy.

"A woman whom I later determined was Ms Christine Barrie, the Applicant's sister answered the door and I identified myself, showed my identification badge and asked to speak to the Applicant.  Ms Mary-Ann Vella and I went inside the house and the three other Departmental officers, Leonardi, Steeds and Colbert, remained outside as it was determined that their presence inside was not warranted.  Ms Barrie pointed to a person lying on a mattress on the floor of the lounge room who identified herself as the Applicant.  Ms Barrie informed me that they were in the process of packing up and moving in the next week or so.  I advised the Applicant in the presence of her sister of the reason for my visit.  I informed her that her application of 24 April 1990 appeared to be inadmissible and that as her Application for Review of a Decision ("ARD") by the Immigration Review Panel ("IRP") had been refused by the delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") on 22 September 1992 she did not appear to have reason for remaining in Australia.  I informed the Applicant that I reasonably supposed her to be an illegal entrant and that she was being detained in custody so that her circumstances could be further considered and if necessary, arrangements could be made for her removal from Australia, as she had failed to approach the Department or make such arrangements herself.  The Applicant's sister Ms Barrie informed me that she was not aware of a decision in respect of the IRP review application and I informed the Applicant and Ms Barrie that the decision advising of the refusal was posted to the Applicant's solicitors Ravi James and Associates on 24 December 1992 and the Applicant was deemed to have received it."

Mr Yau also deposed to being informed by the applicant on 8 February 1993, after the events outlined in the above paragraph, of the death of the applicant's mother.

The application for review

The only decision of which review is now sought in this matter is the decision of Mr Yau made pursuant to s.92(1) of the Act on 8 February, 1993 to detain the applicant in custody. Section 92(1) provides as follows:-

"An officer may, without warrant, detain in custody a person whom the officer reasonably supposes to be an illegal entrant".

Mr Yau was at the relevant time an "officer" within the meaning of s.92(1). It is not disputed that s.92(1) gives to an officer a discretion as to whether or not to detain in custody a person reasonably supposed by him or her to be an illegal entrant. A decision to so detain is a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies within the meaning of s.5 of that Act.

The applicant was held in custody for 2½ weeks following her detention and then released from custody on conditions. The validity of her detention is a factor in determining whether she may seek to have the decision to refuse the first application reviewed by the Immigration Review Tribunal pursuant to regulation 23 of the Migration (Review) (1993) Regulations.

The application for review

The grounds of review of the decision to detain the applicant in custody relied upon by the applicant are that:-

(1)the decision was affected by error of law;

(2)it was an improper exercise of the power conferred by s.92 of the Migration Act in that:-

(a)the decision maker failed to take into account relevant considerations;

(b)the decision maker took into account irrelevant considerations; and

(c)the exercise of the power was so unreasonable that no reasonable person could have so exercised the power;

(3)the person who purported to make the decision did not have jurisdiction to make it; and

(4)procedures that were required by law to be observed in connection with the making of the decision were not observed.

The Statement of Reasons

Mr Yau, following a request from the applicant's solicitors, provided a statement of reasons for his decision to detain the applicant in custody on 8 February 1993.  After noting certain formal matters and setting out the applications for resident status in Australia made by the applicant Mr Yau states:-

"2.In relation to each of these applications, I noted from the file:

(a)the applicant's application for resident status was refused on 6 March 1990;

(b)the applicant had not pursued her Federal Court application but had instead applied for review of the decision to refuse her resident status pursuant to regulation 173A of the Migration Regulations;

(c)her application for review of the decision to refuse her resident status was refused on 22 September 1992; and

(d)In regard to the application lodged on 24 April 1990, I had examined the contents of the said application and had come to the same conclusion as another colleague (folio 69) that the applicant did not appear to be eligible to lodge this application as she has not had any prescribed change in circumstances.  Consequently I was of the opinion that this application was not an application permitted by the Act.

1. Accordingly, I determined that as the applicant did not have a valid entry permit, she was an illegal entrant.  I also considered that at least 28 days had passed since the applicant was notified of the decision on review and she had apparently made no effort to depart Australia, hence a visit was made to her place of residence in order to establish any intentions she may have of departing Australia voluntarily.

1. The need to place illegal entrants in custody is described in the Procedures Advice Manual (PAM) titled 'Custody and Apprehension: 1 Arrest of illegal entrants and deportees, Chapter 3'.  Paragraph 3.1.1 lists the classes of persons who are subject to detention in custody, and it includes

.persons whose temporary entry permit has expired and have not departed Australia

.persons without a valid entry permit who have been refused a further entry permit and who do not depart, or who demonstrate an unwillingness to depart, within the time allowed by the Department following notification of the refusal decision

Paragraph 3.1.2 describes some instances where an illegal [entrant] may not need to be placed in custody to include

.people who have been in continued contact with the Department

.people who can demonstrate that they have a current entry permit application unresolved.

1. As mentioned, the review application was refused and the applicant advised by post of this decision through her solicitors on 24 December 1992.  At [the] time of location, the applicant had protested that she did not receive any correspondence from her solicitors.  A similar claim, that no correspondence from the Immigration Review Panel was ever received, was also made by the solicitors.  However, as the letter advising of the decision on review was posted to the applicant's solicitor on 24 December 1992, the effect of regulation 173 of the Migration Regulations is that the applicant is deemed to have received the letter advising her of the decision 5 working days after the letter was posted.  I calculated that the solicitors are deemed to have received the letter of refusal by no later than 7 January 1993."

Mr Yau goes on to refer in his reasons for decision to his learning of the death of the applicant's mother.  It appears plainly from his affidavit referred to above that the decision to detain the applicant was made before Mr Yau gained this information.  I conclude that it did not affect his decision to detain the applicant in custody.

The statement of reasons concludes:-

"Having reasonably satisfied myself that the applicant

-was an illegal entrant whose period of grace had expired,

-had not departed Australia and had no apparent intention to depart Australia of her own accord,

-had no permissible applications before the Department, and

-had not communicated with the Department for some considerable time,

I decided on 8 February 1993 to detain Leonie Bernadette Simonsz in custody."

The contentions

Two of the contentions made on behalf of the applicant can be dealt with shortly.  First it was pointed out that the
statement of reasons for decision of Mr Yau asserts that "a visit was made to her place of residence in order to establish any intentions she may have of departing Australia voluntarily".  It was further pointed out that the matters referred to in paragraph 5 of the reasons were known to Mr Yau before his visit to the applicant's place of residence, and, as referred to above, the matters referred to in paragraph 6 of the reasons were learned by him after the decision to arrest.  The decision to detain in custody in the circumstances was therefore, it is argued, unreasonable in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Attorney General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at p 36.

Section 92 gave Mr Yau a wide discretion to detain in custody or not to so detain. The law is not settled as to the material against which the reasonableness of Mr Yau's decision is to be assessed (see Prasad v MIEA (1985) 6 FLR 155). If the relevant material is that actually before Mr Yau at the time that he made his decision, such material included the following:-

(a)the Department file to which he had access indicated that advice had been provided to the applicant's solicitors that the applicant's review application had been refused;

(b)the file also indicated that there had been no contact between the applicant and the Department for some months; and

(c)upon his arrival at the applicant's place of residence it appeared that the applicant had plans to change her place of residence which plans had not been notified to the Department.

Mr Yau was required to assess the risk of the Department losing contact with the applicant and of her merging, or seeking to merge, into the Australian community without enjoying resident status.  Seen in the light of the matters already mentioned I do not consider that his decision was unreasonable in the sense that no reasonable repository of the power could have made it (Attorney-General v Quin per Brennan J at p 36).

If it is appropriate to have regard to the material before the Court, as opposed to the material before Mr Yau, I remain unpersuaded that the decision was unreasonable.  The material before the Court shows that the applicant did not learn before Mr Yau's arrival at her place of residence of the refusal of her review application.  However the material before the Court enhances the significance of the lack of recent contact between the applicant and the Department:  although applying for resident status principally on the ground of her mother's need for her care, the applicant had failed to advise the Department of the death of her mother.  In addition, although the applicant has sworn that "I was not absconding from the Department and have always been in touch with them" she has not deposed to any intention to advise the Department of her planned change of address.

I consider, however, that the better view is that tentatively expressed by Wilcox J in Prasad v MIEA (1985) 6 FCR 155 at p 169 that in principle the correct approach is that in considering whether the decision of the decision-maker is unreasonable or unjustifiable "the court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him."  The unreasonable conduct suggested against Mr Yau in this case is that he acted precipitously in deciding to detain the applicant in custody.  It is suggested that once he had learned that the applicant had not been notified of the rejection of her review application there was no need to detain her in custody.  It follows from what I have said above that, even if Mr Yau had so learned, I would not find his decision to detain the applicant in custody unreasonable in the relevant sense.  This does not mean, of course, that I find that the decision was necessarily sound in all of the circumstances:  that is not a matter for me (see Parramatta City Council v Pestell (1972) 128 CLR 305 per Menzies J at p 323).

Secondly it is argued that the decision maker applied the incorrect law in determining whether the applicant was to be taken to have received notification of the refusal of the first application.  The issue of notification is discussed in more detail below.  In my view this argument must also be rejected:  it is conceded that the regulation apparently incorrectly considered by Mr Yau was in all material respects in identical terms to that which he ought to have considered.

It was further argued on behalf of the applicant that Mr Yau made errors of law in concluding that the applicant:-

"(a)was an illegal entrant whose period of grace had expired; and

(b)had no permissible applications before the Department."

The reasons for decision provided by Mr Yau make it plain that his decision to detain the applicant in custody was based, at least in part, on the above conclusions.

The statutory framework

In his reasons for decision Mr Yau stated that he had "reasonably satisfied" himself that the applicant was "an illegal entrant whose period of grace had expired".  It is not in dispute that as at 8 February 1993 the applicant was an illegal entrant.

The Act provides in s.13 for "period[s] of grace". So far as is here relevant, s.13 of the Act is in the following terms:-

"(1)The period of grace for a person who has become an illegal entrant:

(a)starts when the person becomes an illegal entrant; and

(b)ends when the total number of days that have passed since the period started, not counting excluded days, equals 28.

(2)In this section:

"excluded day" in relation to a person who becomes an illegal entrant, means each day of any period:

(a)starting when the person applies, as permitted by or under this Act and in circumstances where section 34 applies, for an entry permit and ending when the person is notified of the decision on the application."

Section 34 relevantly provides as follows:-

"(1)This section applies where, and only where:

(a)a person makes an application for an entry permit of a particular class in accordance with the regulations; and

(b)any fee payable in respect of the application is made."

As to the applicant's second application, the respondent contends that such application was not "permitted by the Act" (see s.13(2)(a)) by reasons of the terms of s.37 which is set out below. However it is conceded that the first application "was permitted by or under this Act and [made] in circumstances where s.34 applies".

The Regulations require the Minister where he has refused to grant an entry permit to 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)[not here relevant]; or

(d)[not here relevant]."

(see reg. 35 which is set out below)

Where a notice of decision is posted as referred to above:-

"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)[not here relevant]

(see regs. 35(2) and 173(2) ).

In his reasons for decision Mr Yau acknowledges that the applicant asserted that she was unaware of the decision of 22 September 1992 whereby her application for the reconsideration of her first application had been refused.  As is apparent from the portion of Mr Yau's reasons for decision set out above, he acted on the basis that the effect of regulation 173 of the Regulations was that the applicant was deemed to have received the letter advising her of the decision by no later than 7 January 1993.

In his reasons for decision Mr Yau states that he had "reasonably satisfied [himself] that the applicant ... had no permissible applications before the Department."  As the relevant portion of his reasons for decision shows, Mr Yau's satisfaction in his regard was based upon his conclusion "that the applicant did not appear to be eligible" to lodge her second application. The accuracy of this conclusion depends upon the proper construction of s.37 of the Act. Section 37 provides, so far as is here relevant, as follows:-

"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)[not here relevant]".

It is conceded on the applicant's behalf that as at the time that she made her second application there had been no prescribed change in her circumstances since she made the first application.

The finding that the applicant was an illegal entrant whose period of grace had expired

It is not in dispute that as at 8 February 1993 the applicant was an illegal entrant. The issue raised on behalf of the applicant is whether Mr Yau made an error of law in satisfying himself that as at that date her period of grace had expired. By reason of the terms of s.13(2)(a) the period of grace could not end until after the applicant was notified of the Minister's decision on the reconsideration of the first application. It is not suggested by any party that the first application was not "permitted by or under" the Act within the meaning of s.13(2). The status of the second application is considered below.

Mr Yau asserts in his reasons for decision that a "letter advising of the decision on review [of the first application] was posted to the applicant's solicitor on 24 December 1992."  He concludes that the effect of regulation 173 of the Regulations is that the applicant is deemed to have received the letter advising her of the decision five working days after the letter was posted.

Mr Selvaduvai Raveendran, the principal of the firm of solicitors acting on behalf of the applicant, has deposed to having no recollection of the receipt of any such letter of advice, and to having satisfied himself that no letter concerning the applicant was received by his office between 24 December 1992, the date of the copy letter referred to by Mr Yau, and the date of the applicant's detention in custody.

Whilst a copy letter dated 24 December 1992 apparently from the files of the Department containing advice of the refusal of resident status is exhibited to Mr Yau's affidavit, neither he nor any other officer of the Department gave evidence of the posting of the letter.  I was asked to presume that in the ordinary course a letter typed, and apparently signed (the copy letter is signed) within a government department would be posted on that day or soon thereafter.  I would be reluctant in this case to so presume having regard to:-

(a)the evidence of Mr Raveendran that the letter was not received by its addressee;

(b)the date on which the letter was apparently typed (i.e. Christmas Eve); and

(c)the absence of any evidence of the practice of the Department with respect to the handling of mail.

However it is important to determine whether the conclusion reached by Mr Yau that the original of the copy letter dated 24 December 1992 was posted to its addressee on that day is reviewable in these proceedings.

The Act does not require an officer in exercising the discretion embodied in s.92 of the Act to determine whether the illegal immigrant is one whose period of grace has expired. An illegal immigrant whose period of grace had not expired could lawfully be detained in custody under s.92. For this reason a finding of fact in this regard, including an inference drawn from primary facts, does not itself constitute a reviewable decision: it is no more than a step along the way to an ultimate determination under s.92. Nonetheless, if the determination to detain in custody depends upon a finding of fact vitiated by error of law or made without evidence, it is reviewable as an element in the review of the determination to detain in custody (see Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 per Mason CJ at pp 340-341).

Mr Yau's reasons for decision reveal that his decision to detain the applicant in custody was dependent, at least in part, on his conclusions:-

(a)that the original of the copy letter of 24 December 1992 was posted to its addressee; and

(b)that the applicant was an illegal entrant whose period of grace had expired by reason of the fact
that she was to be taken to have been served with the original of the letter dated 24 December 1992. 

In my view, it can not be said that the decision to detain the applicant in custody was vitiated by error of law in the sense that there was no evidence upon which Mr Yau, an officer of the Department, could conclude that the original of the copy letter dated 24 December 1992 was posted to its addressee on or about that day.  It appears that Mr Yau found the copy letter, in a form which indicated that the original was appropriate for posting to its addressee, on a Departmental file in circumstances which suggested to him, an officer of the Department, that the original had been posted on or about the 24 December 1992.  In my view this amounts to some evidence upon which Mr Yau could conclude that the original was posted.  The fact that in all of the circumstances now before the Court I might be unwilling to conclude that the original had been posted is in this regard immaterial.

I turn to consider whether Mr Yau made an error of law in concluding that the applicant's period of grace had expired by reason of the fact that she was to be taken to have been served with the original of the letter dated 24 December 1992.  It was submitted on behalf of the applicant that regulation 173 of the Regulations has no operation in circumstances in which evidence is available which bears on the question of the service or otherwise of the notice.  It seems to me that if the regulation were intended to operate as though it read:-

"unless the contrary is proven service is taken to be effected"

it would have been so drafted (see Acts Interpretation Act 1901 s.29). As to the suggested operation in this case of s.29 of the Acts Interpretation Act, even if it may be assumed that the section applies to the interpretation of regulations generally, it is my view that the Regulations disclose a contrary intention. The terms of s.29 are as follows:-

"Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."

I note that this construction of regulations 35 and 173 is consistent with that adopted by Olney J in Rodwell v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 195. I conclude that regulation 173 had an operation in the circumstances of this case.

I also reject the contention made on behalf of the applicant that the notice by letter dated 24 December 1992 of the rejection of the first application was not a document which was required to be "served" within the meaning of regulation 173.  Regulation 35(1) requires the Minister where he or she refuses to grant an entry permit to give the applicant written notice of that decision in one of four ways.  One such way is by posting the notice to the latest address for service provided by the applicant in relation to the application.  Each of the methods of notification prescribed by regulation 35(1) is recognised by regulation 35(2) as constituting service on the applicant.  I see no reason to conclude that the word "service" is intended to have a different meaning where it appears in regulation 173.  In my view the notification of the rejection by the Minister of the first application was a document which was required to be "served" within the meaning of regulation 173.  In any event I note that regulation 173 is drawn in terms of "a document served" rather than "a document required to be served".

If regard is had solely to the first application it is my view that it has not been shown that Mr Yau made an error of law when he found that the applicant was an illegal entrant whose period of grace had expired.  I turn to the second application.

The finding that the applicant had no permissible applications before the Department

The Act does not require an officer in exercising the discretion embodied in s.92 of the Act to determine whether the illegal immigrant is one who has no permissible applications before the Department. However as Mr Yau's reasons for decision reveal that his decision to detain the applicant in custody depended, at least in part upon his finding that the applicant had no permissible applications before the Department, his decision will be reviewable if that finding is vitiated by error of law or made without evidence (Australian Broadcasting Tribunal v Bond).

The validity of the finding is dependent upon the status of the applicant's second application. This in turn is dependent upon the proper construction of s.37 of the Act which is set out above. It is conceded on behalf of the applicant that as at the date when the second application was made there had not been a prescribed change in the applicant's circumstances since she last applied for an entry permit (see s.37(2) of the Act).

It was contended on behalf of the applicant that Mr Yau was not entitled to assume that the applicant was "not a person to whom section 36 applies because of section 121" (see s.37(1)(c)). No evidence was identified to support an inference that the applicant was such a person. I conclude that Mr Yau made no error in this regard.

It was contended on behalf of the respondent that an application made by a person who within the terms of s.37 "is not entitled to make any further applications" is a nullity. That is, the application is not one the refusal of which must be advised by a written notice (see reg. 35 of the Regulations), and is not one which attracts a period of grace under s.13 of the Act. On behalf of the applicant it was contended, in effect, that even if the applicant was not entitled to make the second application it remained an application before the Department until she received written notice of its refusal.

At first glance the contention made on behalf of the respondent as to the effect of s.37 is unattractive - particularly in the circumstances of this case. The applicant purported to make the second application on 24 April 1990. She completed the appropriate form which was accepted by the Department that day along with the required fee. The applicant received no advice before 8 February 1992 that the validity of her application was either doubted or not accepted. Further the question of whether or not there had been a prescribed change in the circumstances of an illegal entrant since he or she last applied for an entry permit is not one necessarily susceptible of mechanical determination. Indeed, to the extent that the application here under consideration suggested a prescribed change in the applicant's circumstances, it was that her mother had become permanently incapacitated with the result that the applicant was a "special need relative".  Plainly a determination of whether or not an applicant is a "special need relative" can involve questions of judgement.  Indeed a consideration of the merits of certain applications for residential status will involve the same issue.

The question of the validity of the second application must, however, be determined having regard to the intention of Parliament as disclosed by the language of the Act as a whole. I regard s.34 of the Act as telling in this regard. Section 34, so far as is here relevant, provides as follows:-

"34(1)  This section applies where, and only where:

(a)a person makes an application for an entry permit of a particular class in accordance with the regulations; and

(b)any fee payable in respect of the application is paid.

(1A)[not here relevant]

(2)Unless this section applies, the Minister:

(a)is not required to consider an application at all; and

(b)shall not in any circumstances grant an entry permit.

(3)Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister must:

(a)  [not here relevant]; and

(aa) [not here relevant];

(b)subject to this Division, grant the applicant such an entry permit.

(3A)[not here relevant]

(3B)[not here relevant]

(4)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."

It appears that the second application was made in accordance with the Regulations and the appropriate fee was paid. It was therefore an application to which s.34 applied (s.34(1)). Under s.34(3) the Minister may only grant such an application "subject to this Division". Sections 34 and 37 are each part of Part 2 Division 3 of the Act, i.e. s.37 is part of "this Division". By reason of s.37 the applicant was not entitled to make the second application. Since the Minister is only empowered to grant an application subject to Part 2 Division 3 of the Act, he is not, in my view, empowered to grant an application which by reason of s.37 was not entitled to be made.

Section 34(4) of the Act deals with the refusal of applications to which s.34 applies. It requires the Minister to refuse to grant applications where the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned. It is not by reason of the regulations that a person who falls within the terms of s.37 is not entitled to be granted an entry permit. The subsection thus does not provide for the refusal of applications by reason of the provisions of Part 2 Division 3. By reason of s.34(3) an application not permitted by the Division can not result in the grant of an entry permit.

In my view the inference to be drawn from the structure of s.34 is that the Minister is not required to give consideration to whether an application made by a person who by reason of s.37 was not entitled to make it should result in the grant or the refusal of an entry permit. Such an application would be one which the applicant was not entitled to make and it would not call for consideration on the merits. Since the Minister would not refuse to grant the entry permit sought by such an application pursuant to s.34(4), but would
rather find himself in a position where he was unable to consider it on the merits by reason of ss.34(3) and 37, regulation 35 of the Regulations would, in my view, have no application. For completeness I set out regulation 35. It provides 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."

Section 13 in my view, supports this interpretation of ss.34 and 37 of the Act. Section 13 defines "excluded days" for the purpose of the calculation of a persons "period of grace".  An
"excluded day" under the section means each day of a period "starting when the person applies, as permitted by or under this Act and in circumstances where section 34 applies, for an entry permit and ending when the person is notified of the decision on the application." (underlining added) It seems to me that an application made contrary to the requirements of s.37 can not be intended to be an application "permitted by or under this Act" within the meaning of s.13. If it were such an application it would seem that an illegal entrant could continually extend his or her "period of grace" by the repetitive lodging of applications in disregard of the terms of s.37.

I therefore conclude that Mr Yau did not make an error of law in reaching the conclusion that the applicant had no permissible applications before the Department.  It follows also that the absence of any evidence that Mr Yau was authorised to determine the second application is immaterial.  The application was one which it is conceded that the applicant was not entitled to make at the time that she purported to make it.

I further conclude that the second application did not affect the time of expiry of the applicant's period of grace as defined by s.13.

The difficult question of the proper procedure for the determination in contentious cases of the question of whether or not there has been a prescribed change in a person's circumstances since he or she last applied for an entry permit need not be considered here.

I should also make mention of evidence contained in an affidavit sworn by the applicant of political unrest in Sri Lanka and of its impact upon her and her family members who remain in Sri Lanka.  The evidence has not been challenged and I accept it.  However the applicant's applications for resident status were not made, as I read them, on any ground relating to political unrest in Sri Lanka.  It was not for the Department to reframe her applications or to make out a case for her which she had not put forward.  In my view this evidence does not advance the applicant's application for judicial review.

The application must be dismissed.

I certify that this and the preceding        pages are a true copy of the Reasons for Judgment of Justice Branson.

Associate:

Dated:

Counsel for the Applicant    :    Mr T Hurley
Solicitors for the Applicant :    Ravi James & Associates

Counsel for the Respondent   :    Mr C Gunst
Solicitors for the Respondent     :    Australian Government
  Solicitor

Hearing Date                :    14 February 1995