Singh, Amolak v the Honourable Nick Bolkus Minister for Immigration and Ethnic Affairs

[1996] FCA 228

CATCHWORDS

CITIZENSHIP, IMMIGRATION AND EMIGRATION - judicial review of decision not to grant permanent entry permit - criteria for provisions of visa prescribed by the Migration Regulations - applicant must be holder of temporary entry permit at time of decision

ADMINISTRATIVE LAW - Administrative Decisions Judicial Review Legislation - application for extension of time under s11 - application for extension of time futile

Migration Act 1958
Migration (1993) Regulations 1992
Administrative Decisions (Judicial Review) Act 1977

AMOLAK SINGH v THE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG 431 of 1995

BEAUMONT J.

SYDNEY

27 MARCH 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No.  NG 431 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:AMOLAK SINGH

Applicant

ANDTHE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    Beaumont J.

DATE:     27 MARCH 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.  Application for extension of time dismissed with costs of      the hearing of 27 March 1996.

2.  All other costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No.  NG 431 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:AMOLAK SINGH

Applicant

ANDTHE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    Beaumont J.

DATE:     27 MARCH 1996

REASONS FOR JUDGMENT

This is an application for the extension of time in which to bring an application under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"). The application for extension is made under s.11(1)(c) of that Act. Upon opening the matter, counsel for the applicant indicated that if the extension were granted it would be contended at the final hearing of the judicial review application that, notwithstanding an apparent bar to the application for the entry permit sought by his client, there was a residual or overriding discretion in the decision maker concerned, that discretion to be derived from the legislative scheme as a whole which applied in the present case.

The material facts are within a short compass. The applicant was the holder of an entry permit which expired on 8 June 1994. The applicant subsequently lodged an application for a permanent entry permit on 17 June 1994. That is to say, as at the date of the making of the relevant application for a permit, the applicant was not the holder of a temporary entry permit. By s.47 of the Migration Act 1958 (as it appears in Re-print No.4) it is provided in sub-s.1 that:

A permanent entry permit must not be granted to a non-citizen after entry into Australia unless the non-citizen is the holder of a valid temporary entry permit.

Provision is made by s.33(2) of that Act for the making of regulations which themselves provide for classes of entry permit and that subject to certain exceptions a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class.

It is common ground that the relevant criteria were prescribed by the regulations, and that the criteria were "to be satisfied at the time of the application".  The relevant class of visa was described in the Migration (1993) Regulations 1992 in their then form as Class 801 (Spouse (After Entry)) Entry Permit.  Paragraph 801.73 specifies the criteria which must be satisfied at the time of the decision on the application for an entry permit lodged after entry. 
         By paragraph 801.731 it is required that:

"The applicant is the holder of a section 47 temporary entry permit."

In my opinion, on a literal and any ordinary construction, it is a clear statutory requirement beyond any reasonable argument that, at the time of the making of the decision to grant the entry permit now in question, the applicant must have been the holder of a s.47 temporary entry permit. As has been said, it is common ground that the present applicant was not the holder of such a permit at the relevant date. Indeed, he was not the holder of such a permit after 8 June 1994.

When the purpose or policy underlying the words used in the text of the statute is examined, the same result must follow.  I see nothing unjust, unreasonable or capricious in such an outcome.  For these reasons, as I have already indicated in the course of argument, I am of the opinion that the applicant's contentions in any ultimate hearing would be bound to fail. 

Therefore, I have concluded that it would be futile to grant the extension of time sought and I dismiss the application for that extension with the costs of to-day's hearing.  I reserve all other costs.  It may be noted that I
have not addressed any other aspect of the application for extension. 

I hereby certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.

Dated:  27 March 1996

Associate:

Counsel and Solicitors   Mr. S.A. Kerr instructed by
for Applicant:          Corby Levingston

Counsel and Solicitors   Ms. R.M. Henderson instructed
for Respondent:         by the Australian Government
  Solicitor

Date of hearing:        27 March 1996

Date judgment delivered: 27 March 1996