Soo, K.A. v Tuchin, F.R
[1986] FCA 161
•30 APRIL 1986
Re: KOH AH SOO; TAN NGO MO; ELAINE KOH and AMY KOH
And: JOHN REGINALD TUCHIN and THE REGIONAL DIRECTOR DEPARTMENT OF IMMIGRATION
AND ETHNIC AFFAIRS
No. G79 of 1986
Administrative Law - Statutes
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.
CATCHWORDS
Administrative Law - judicial review - deportation order - whether natural justice requires an oral hearing before prohibited immigrants can be deported - factual error in statement of reasons for order - whether error amounted to failure to take into account relevant consideration or taking into account irrelevant consideration - whether "right accrued" by virtue of s.8(c) Acts Interpretation Act prior to repeal of s.7(4) of Migration Act - whether Court can reconsider merits of case.
Statutes - repeal of acts - whether right had accrued before repeal of s.7(4) of Migration Act - effect of saving provision of Acts Interpretation Act (s.8(c)).
R. v. Diggines, ex Parte Rahamani (1985) 1 All.E.R. 1073.
Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321.
Akpan v. The Minister for Immigration and Ethnic Affairs, unreported, Sheppard J, 7 April 1982.
Lally v. The Minister for Immigration and Ethnic Affairs, unreported, Keely J., 17 January 1985.
Sean Investments Pty. Ltd. v. MacKellar (1981) 38 A.L.R. 363
Mekol Pty. Ltd. v. Baulkham Hills Shire Council (1971) 2 N.S.W.L.R. 54.
Total (Australia) Ltd. v. Registrar of Companies (1969) V.R. 82l.
Ku-ring-gai Municipal Council v. Attorney-General for the State of New South Wales (1957) 99 C.L.R. 251.
HEARING
SYDNEY
#DATE 30:4:1986
Counsel and Solicitors for Applicants: Mr. J. Kelly, instructed by Messrs. Plowes & Ellis
Counsel and Solicitors for Respondent: Mr. T. McGrath instructed by Australian Government Solicitor
ORDER
Application dismissed.
The applicants pay the respondents' costs of the application.
JUDGE1
The applicants seek orders of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of deportation orders made on 26 February 1986 by the first respondent as delegate of the Minister for Immigration and Ethnic Affairs. The orders were made pursuant to s.18 of the Migration Act 1958.
The facts are not in dispute. The first applicant, a Malaysian national, was born at Selangor, Malaysia, in December 1948. He is married to the second respondent, also a Malaysian national, who was born at Selangor in January 1953. There are two children of the marriage: the third applicant, born in Malaysia in December 1977, and the fourth applicant, born at Newcastle, New South Wales, in September 1983. The first applicant entered Australia on 29 January 1980 and was then granted a temporary entry permit valid for three months. The permit was endorsed "Employment Prohibited". The second and third applicants entered Australia on 19 April 1980 and were granted temporary entry permits valid for two months. Their permits were also endorsed "Employment Prohibited".
On 19 June 1980 the Minister for Immigration and Ethnic Affairs announced that the Government had decided to "provide the opportunity for the majority of illegal immigrants who arrived in Australia before 1 January 1980 to regularise their status in Australia....From (19 June 1980) until the end of 1980 these people will be able to apply for permanent residence status under the Regularisation of Status Programme (ROSP)." On 10 September 198O, the first applicant asked the Department whether he was eligible for permanent residence in Australia under ROSP. By letter dated 11 September 1980, the Department informed the first applicant that he was not so eligible. He was instructed to depart Australia by 25 September 1980. On 25 November 1980, the first and second applicants made formal applications under ROSP. On 27 November 1980, the Department confirmed the views expressed in its September letter and requested departure details. In December 1980, the first and second applicants renewed their applications for permanent residence status under ROSP. By letter dated 15 December 1980, the Department maintained its refusal to entertain the applications and asked the applicants to depart Australia by 29 December.
On 17 December 1985, officers of the Department of Immigration and Ethnic Affairs called upon the first and second applicants at a Chinese restaurant conducted by them at Rathmines near Newcastle. On 18 December 1985, the first applicant was interviewed by officers of the Department. The interview was subsequently summarised in the deportation case summary prepared for the consideration of the first respondent as follows:
"Mr. Khau (as the first applicant was also known) was interviewed on 18 December 1985. He said that he completed five (5) years of high school in Malaysia and then worked as a maintenance mechanic and supervisor in a factory which produced rope.
Since his arrival in Australia Mr. Khau has resided in the Newcastle area of NSW. He has been employed as a cook in various Chinese restaurants since 1980 and since March 1983 has owned the Rathmines Chinese Restaurant. He works in the restaurant as a cook and said that he earns $l000 per week.
Mr. Khau said that his assets in Australia consist of $l00 cash; his home which is valued at $49,000 but over which he has a $44,000 mortgage; the restaurant which is valued at $50,000 and for which he owes $5000; a motor vehicle valued at $6000, household furniture and personal effects. He said that he has no assets overseas. He said that he has no criminal convictions in Australia or overseas and has never been deported or excluded from any country. (He said that he had never previously been directed to depart Australia but in fact was directed to do so in writing several times during 1980.)
Mr. Khau said that he wishes to remain in Australia because he likes the people and is able to make a living in this country. He pointed out that he has invested in a home and business, neither of which he has in Malaysia. He has a child, Amy, who was born in Newcastle on 6 September 1983. He felt that in view of the existence of his Australian born child, he meets the legal requirement for the grant of resident status under Section 6A(1)(e) of the Act. He stressed that his children only speak English and would experience settlement problems in Malaysia. He also said that there is a political bias against Chinese persons in Malaysia.
Mr. Khau has been interviewed (attached at "A"), was made aware of the relevant policy and given the opportunity to make written submissions...."
The second applicant was also interviewed on 18 December 1985. The interview was summarised by an officer of the Department as follows:
"Ms Tan was interviewed on 18 December 1985. She said that she completed three (3) years of high school in Malaysia and then worked as a boutique salesperson and performed home duties.
Since her arrival in Australia Ms Tan has resided in the Newcastle area of NSW. She was employed as a waitress at the Canton Cafe, New Lambton, and since March 1983 has jointly owned the Rathmines Restaurant with her spouse.
Ms Tan said that her assets in Australia consist of $1150; the home and business owned jointly with her spouse and her personal effects. She said that she has no assets overseas.
Ms Tan said that she has no criminal convictions in Australia or overseas and has never been deported or excluded from any country. She said that she had never been directed to depart Australia but in fact was directed in writing, to do so, several times during 1980.
Ms Tan re-iterated her spouse's reasons for wishing to remain in Australia, namely that she likes the people and is able to make a living in this country. She has a child, Amy, who was born in Newcastle on 6 September 1983. She felt that in view of the existence of her Australian born child she meets the requirements for the grant of resident status under Section 6A(1)(e) of the Act. Her spouse stressed that the children only speak English and would experience settlement problems in Malaysia. He further said that there is a political bias against Chinese persons in Malaysia.
Ms Tan has been interviewed (attached at "A"), was made aware of the relevant policy and given the opportunity to make written submissions..."
On 18 December 1985, the first and second applicants retained Mr. P.J. Ellis, a Sydney Solicitor, to act for them. According to Mr. Ellis, in an affidavit sworn by him and not the subject of cross-examination, on 18 December 1985, he telephoned Mr. Darryl Short of the Newcastle office of the Department and had a conversation with him to the following effect:
Mr. Ellis said: "I understand that Mr. and Mrs Koh have been arrested and will be charged with offences under the Migration Act. I have been asked to make representations on their behalf but as yet I have no papers and I have got no idea what their proper status is."
Mr. Short said: "They are prohibited non-citizens under the Act. If you wish to make any representations you should write to the Sydney office of the Department to tell them. All representations should be co-ordinated through that office, not the Newcastle branch."
Mr. Ellis said: "Thank you. I'll do that."
A note of this conversation was made in the Departmental file. Although the note seems to accord with the version given by Mr. Ellis, counsel for the applicants relied on the note in the course of his submissions. The note was as follows:
"The Khau's requested time to seek legal counsel and Mr. Peter Ellis of a Sydney firm of Solicitor (Ph 908 1844) confirmed that he would be acting on their behalf. He also sought time to provide a submission on their behalf and was advise (sic) to forward any submission or requests to your office for your attention."
On 10 January 1986, Mr. Ellis wrote to the respondent as follows:
"We act for Mr and Mrs D. Khau of Lot 143 Clydebank Road, Buttaba and we have had discussions with Mr Daryl Short of your Newcastle Office.
We understand Mr & Mrs Khau are to be charged as being prohibited non citizens and it would be appreciated, especially given the language difficulties, if copies of your correspondence to Mr & Mrs Khau could be forwarded simultaneously to us so that we are able to co-ordinate their representations to your Department at the agreed time.
We await your advices."
On 26 February 1986, deportation orders were made in respect of the first and second applicants. The orders were expressed to be made pursuant to s.18 of the Migration Act and recited that the first and second applicants were prohibited non-citizens by virtue of s.7 of the Migration Act in that they were the holders of temporary entry permits which had expired.
The deportation case summary in respect of the first applicant was dated 26 February 1986 and was prepared by officers of the Department for the consideration of the first respondent. It outlined the first applicant's history and personal circumstances along the lines already noted. In referring to the opportunity given to the first applicant to make written submissions, the summary stated that no submissions had been received and that the first applicant had advanced no further circumstances to be taken into account under s.18. No specific mention was made of the letter written by Mr. Ellis on 10 January 1986. However, the summary did refer to the fact that Mr. Ellis had indicated on l8 December 1985 that he would be making a submission on behalf of the first applicant but that no submission had by then been received.
The summary dealt with the possibility of the first applicant's seeking to "regularise" his status as follows:
"Mr. Khau could apply for a further TEP but having regard to the applicable policy such an application is unlikely to be approved. He does not fulfil the conditions of section 6A of the Act for the grant of permanent residence in Australia."
After mentioning that it was Government policy that "people who are in Australia illegally will not readily be given permanent residence while they remain in Australia", the case summary, in recommending deportation, made the following assessment:
"Mr. Khau and his spouse have a child born on 6 September 1983 who is a citizen of Australia by birth. Interests of the child to be with her father and be brought up in her country of citizenship is a relevant consideration in your decision. The Human Rights Commission has expressed the view, in another case, that the deportation of the parents of an Australian born child is an infringement of human rights of a child under the "Declaration of Rights of a Child" which is scheduled to the Human Rights Commission Act 1981.
The legal position appears to be that you are required to take into account all the relevant circumstances of the prohibited non-citizen. The rights of an Australian born child of a PNC would be one such circumstance to consider. Having done so it remains lawfully open to you to exercise your discretion to order deportation under Section 18 of the Migration Act 1958.
The deportation of the parents of an Australian born child does not prejudice the child's Australian citizenship. The child has the choice (exercised in practice by its parents) to either go with the parents or to remain in Australia in the care of others. In these situations, as it is to be expected, parents almost invariably take their infant child with them. The child always retains the right to return to the country of citizenship and retains other rights and obligations of an Australian citizen. In this case, because of the age of the child, there is no evidence to suggest that she will suffer any particular hardship if she returns to Malaysia with her parents. There is no evidence in this case to suggest that the child is likely or will remain in Australia without her parents.
Mr. Khau is a prohibited non-citizen. He has committed offences in becoming a prohibited non-citizen and by working without permission. There are on foot no applications for the regularisation of his status. Although it remains possible for his status to be regularised (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of Mr. Khau as related above, you may decide to order his deportation."
A deportation case summary was also prepared in respect of the second applicant. It outlined her history and personal circumstances along the lines already noted. The summary recommended deportation after dealing with the possibilities for regularisation of status and the Government's present policy; an assessment of the second applicant's position was made in terms similar to that made in respect of the first applicant.
On 22 April 1986, acting pursuant to s.13 of the Judicial Review Act, the first respondent gave a statement of reasons for his decision to order deportation. Since the statement of reasons generally accorded with the deportation case summaries, it is unnecessary to refer to the detail of the s.13 statement, save to highlight two specific matters now relied upon by the applicants. First, in recording his findings on material questions of fact, the first respondent dealt with the applicants' family position as follows:
"The Applicants were married in Malaysia. In Australia they have their daughters Elaine Koh born Malaysia 5 December 1977 and Amy Kohn born Newcastle 6 September 1983. The rest of their immediate family reside in Malaysia." (emphasis added)
(It is common ground that the first applicant's brother, Mr. Koh Beng Soon, his wife and two children are Australian citizens who have resided in this country since approximately 1972. It is also common ground that the Departmental file contains a note, made by an officer of the Department in November 1980, recording the family composition of the first applicant. That note stated, inter alia, that the first applicant's brother, Mr. Koh Beng Soon, resided in Sydney, having entered Australia in 1972. The significance, if any, of this misstatement of fact will be considered later).
Secondly, the statement of reasons referred to the possible application of s.6A(1)(e) of the Migration Act in these terms:
"The Applicants do not fulfil any of the conditions of sub-section 6A(1) of the Act for the grant of a permanent entry permit. However I accepted they could be made eligible under paragraph 6A(1)(e) of the Act by the grant of temporary entry permits if strong compassionate or humanitarian grounds for the grant of a permanent entry permit existed. I therefore considered whether, notwithstanding that the Applicants are not the holders of a temporary entry permits which one (sic) in force, there were strong compassionate or humanitarian grounds for the grant of a permanent entry permit to them." (emphasis added)
(The applicants contended that it was not necessary that they demonstrate the existence of "strong" compassionate or humanitarian grounds in this connection. However, apart from conceding that no application under s.6A(1) was before the respondent, no separate argument on the point was sought to be developed. In the circumstances, it is strictly unnecessary to consider whether s.6A(1) could have had any relevant application in the present case. However, even if it were necessary to consider the possible operation of s.6A(1) here, the reasons to be given in dismissing the application for review in respect of the deporation decision made under s.18 would apply equally to any attempt to seek judicial review of any decision made or refused to be made under s.6A(1)).
The applicants advanced a number of arguments in support of their claim for judicial review. In the first place, it was contended that review was available on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision to deport (see Judicial Review Act, s.5(1)(a)). In support of this contention, reference was made to the conversation between Mr. Ellis and an officer of the Department on 18 December 1985 and to the letter written by Mr. Ellis on 10 January 1986. It was submitted on behalf of the applicants that if the letter written by Mr. Ellis had been before the first respondent when he was considering whether to exercise the discretion under s.18 of the Migration Act, the first respondent would not have assumed that the applicants did not intend to make any representations to the Department in aid of a submission that they should not be deported. It was argued on behalf of the applicants that, in the circumstances, they were denied natural justice in that they were denied an opportunity to be heard on the decision for their deportation.
Reliance was placed, in this connection, upon the decision of the English Court of Appeal in R v. Diggines, ex Parte Rahmani; (1985) 1 All ER 1073. The facts, as summarised in the headnote, were that the applicant, an Iranian citizen, requested an extension of her stay in the United Kingdom. This was refused by the Home Secretary. The applicant wished to appeal against this decision to an immigration adjudicator and consulted the Immigrants Advisory Service, which lodged an appeal on her behalf. The notice of appeal stated that she wished to have an oral hearing and to call witnesses. She later notified the advisory service of a change of address but they failed to keep a record of her new address and when the appeal came on for hearing they wrongly informed the adjudicator that her absence was due to her own fault and invited the adjudicator to proceed and decide the appeal on the papers. The applicant's appeal was then dismissed without a hearing. It was held that where an applicant was denied a hearing by a tribunal through no fault of the applicant or the tribunal but because of the fault of the applicant's advisers, there was nevertheless a breach of the audi alteram partem rule which entitled the applicant to judicial review of the tribunal's decision if it was adverse to the applicant.
In my opinion, the reasoning in this case may be distinguished for present purposes. The different issue involved there was succinctly identified by Stephenson, L.J. as follows (at pp.1082-3):
"I am content to accept what Taylor J said at the conclusion of a judgment in which I can detect no confusiuon or error.
'It seems to me that there is a clear distinction to be drawn between the situation in the present case, which must be rare indeed, where there has been no oral hearing at all in a case which gravely affects the applicant's future, and cases on the other side of the line where there has been an oral hearing but subsequently some further evidence has emerged which it is suggested might have made a difference to the outcome. In the former case, which is the present case, it seems to me that there has been a basic failure in the rules of natural justice. There has been an irregularity in the sense that a wholly different type of determination has been carried out, namely, a determination purely on paper evidence as against a full oral hearing.'
I cannot put it better than that, and I would only add that there was nothing wrong with the adjudicator's decision, which may turn out to be right after all, on the accepted facts, but there was a fundamental flaw in the decision-making process. I would affirm the judge's judgment and dismiss the appeal, but must not be taken to be giving any encouragement to immigrants to absent themselves when their appeals come up for an oral hearing and then to blame their advisers or the adjudicator for dismissing their appeals."
In the present case, no question arises of the distinction, central to the decision in Diggines, between a determination purely on paper evidence on the one hand and a full oral hearing before a tribunal on the other.
The decision to deport the first and second applicants in the present case was made on the basis that they were prohibited immigrants and the question of the application of the rules of natural justice in connection with the making of such a decision under s.18 of the Migration Act is to be considered in the light of the authoritative reasoning of the majority of the High Court (Mason, Wilson, Brennan and Deane JJ.) in Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321. It was there held that, by not providing the appellants with the opportunity to respond to material included in the Departmental submission to the Minister's delegate which was prejudicial to them, procedural fairness had not been observed. The prejudicial material related to allegations that one of the appellants had engaged in attempts to evade Australian immigration laws.
Mason J. explained the general position as follows (at p.348):
"But what does procedural fairness entail in its application to the exercise of the discretionary power conferred by s.18? It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. The Migration Act plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or title, has evaded the authorities and will continue to do so. He may even be a person who has been required under s.31A to leave, but has declined to do so. To insist that he be notified of the intention to make a deportation order would serve only to facilitate evasion and frustrate the objects of the statute. These considerations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order...."
To this general position, Mason J. added the following qualification (ibid):
"But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are pesonal to him, as, for example, where they relate to his conduct, health, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them.
However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion
(s.7(1)). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter...."
In my opinion, the first respondent was not guilty of any lack of procedural fairness to the applicants. They were not entitled to advance notice of a deportation order; and since the reasons for making the order did not travel beyond the fact that they were prohibited immigrants, the qualification mentioned by Mason J. has no scope for application here. Rather, this case is one in which the applicants put certain matters to an officer of the Department in the interview held on 18 December 1985 having at the same time foreshadowed, through their solicitor, their intention to make further submissions - yet have failed to do so. Since there can be no suggestion that the respondent or any other officer misled the applicants in this connection and since no other possible unfairness was involved, the applicants' first submission is rejected.
It was secondly argued on behalf of the applicants that the first respondent improperly exercised the power conferred by s.18 (see Judicial Review Act, s.5(1)(e)). The argument was put in a number of ways but the principal submission fastened upon the statement made in para.2 of the s.13 statement of reasons that "(t)he rest of (the applicants') immediate family reside in Malaysia". In fact, one of the brothers of the first applicant had resided in this country since approximately 1972 and had become a naturalised Australian citizen. It was submitted that, in the circumstances, the statutory power of deportation was improperly exercised because either the respondent had taken an irrelevant consideration into account (Judicial Review Act, s.5(2)(a)) or had failed to take a relevant consideration into account (Judicial Review Act, s.5(2)(b)).
Para.2 of the s.13 statement of reasons appears as part of the "findings on material questions of fact", but the reasons for decision appearing at paras.12-18 seem to pick up this finding, albeit in a general way, since para.15 reads:
"15. In deciding whether to order the deportation of the Applicant I took into account all their personal circumstances including their desire to remain in Australia and the possible effects on the family as a whole if they were returned to Malaysia."
According to the table of family composition in the Departmental file, the first applicant's father and mother and two of his three brothers resided in Malaysia as at November 1980. It is to be presumed, in the absence of evidence to the contrary, that this remained the position as at 26 February 1986. It appears, then, that the statement in para.2 exaggerated the true position: the first respondent should have stated that, with the exception of one brother, the rest of the immediate family of the first applicant resided in Malaysia.
The error, however, was one of fact and degree and, to obtain judicial review, the applicants must demonstrate that such an error could properly be characterised either as the taking into account of an irrelevant consideration or the failing to take into account a relevant consideration (see Judicial Review Act, s.5(1)(a) and (b)): a mere error of fact and degree is not enough (see Akpan v. The Minister, unreported, Sheppard J., 7 April 1982; cf. Lally v. The Minister, unreported, Keely J., 17 January 1985).
In my opinion, the misstatement of the place of residence of one member of the family of the first applicant's family should be treated as a mere error of fact and degree in the sense described: the great majority of his family, other than his wife and children, resided in Malaysia and, although para.2 overstated the position to this extent, the exaggeration involved cannot, in my view, be said to be more than a mistake of fact or, more precisely, an error of degree. To put the matter another way, the circumstance that one of the three brothers of the first applicant resided in Australia is not a matter which the respondent was bound to take into account as a relevant consideration to the exercise of the power conferred by s.l8 (see Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 per Deane J. at p 375). The applicants' second submission is rejected.
Thirdly, it was submitted on behalf of the applicants that judicial review was justified because the deportation decision involved an error of law (see Judicial Review Act, s.5(1)(f)). The error of law was said to be that the respondent should have applied s.7(4) of the Migration Act in the present case. Prior to the repeal of s.7(4) in May 1983, s.7 of the Migration Act provided:
"7.(1) The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand.
(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit.
(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation.
(4) Notwithstanding section ten of this Act, a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force."
The first applicant's temporary entry permit expired on 29 April 1980; the second applicant's permit expired on 19 June 1980. Thus, when s.7(4) was repealed in May 1983, the five year period required by that provision to elapse before a prohibited immigrant ceased to have that status had not then elapsed.
The applicants endeavoured to surmount this difficulty by calling in aid the saving provisions of s.8(c) of the Acts Interpretation Act 1901: it was argued on behalf of the applicants that there was involved here a "right...accrued" under the repealed sub-section (4) of s.7. But, as Sugerman A.C.J. observed in Mekol Pty. Ltd. v. Baulkham Hills Shire Council (1971) 2 NSWLR 54 at p 58, cases in which rights have "accrued" within the meaning of similar legislation fall into two classes only:
"There are those in which specific rights have, before the appeal, vested in individuals by reason of the happening of an event or events specified by the repealed statute; and there are cases of the acquisition or accrual of a right by virtue of some act done before the repeal by the individual by or to whom it has been acquired or accrued. The present case is plainly not within the first class; it is to the second that the observation in Abbott v. Minister of Lands (cf. per Kitto J., in Continential Liqueurs Pty. Ltd. v. Heublein and Bro. Inc.; Starey v. Graham applies: the mere right (assuming it to be properly so called) existing in the members of the community to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be called 'a right accrued'."
It follows, in my opinion, that no relevant right could accrue to either applicant until the five year period specified in s.7(4) had elapsed (see Pearce, Statutory Interpretation, 2nd ed. at p 98; Total (Australia) Limited v. Registrar of Companies (1969) VR 821 at p 823). At its highest, merely an inchoate right was involved in the case of the applicants at the time of the repeal of s.7(4) (cf. Ku-ring-gai Municipal Council v. Attorney-General for the State of New South Wales (1957) 99 CLR 251 per Kitto J. at p 276). Since s.8(c) of the Acts Interpretation Act cannot assist the applicants, their third argument must also be rejected.
Fourthly, it was contended on behalf of the applicants that the first respondent failed to consider the merits of the applicants' position. In particular, reference was made to the circumstance that the first applicant entered Australia only 29 days after the "cut-off" date for applications to be made under ROSP, i.e., 1 January 1980.
The submission misconceives the nature of relief available under the Judicial Review Act. It is trite law that relief in respect of an administrative decision is only available on one of the grounds specified in s.5 of that Act and that no general power of review on the merits exists in the Court. Conversely, the fact that no ground for review under s.5 is made out should not be regarded as an endorsement by the Court of the administrative decision on its merits. To do so would be to confuse the judicial and executive functions.
The application must be dismissed with costs.
I make the following orders:
1. Application dismissed.
2. Order that the applicants pay the respondents' costs of the application.
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